author: CRAVEN, J.,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jessie Sumner, Defendant-Appellant.
    Gen. No. 10,857.
    Fourth District.
    February 28, 1968.

      F. Daniel Welseh, of Danville, for appellant.
    John P. O’Rourke, State’s Attorney of Vermilion County, of Danville (Ralph D. Mawdsley, Assistant State’s Attorney, of counsel), for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

In a prior appeal to this court from a judgment of conviction of the crime of murder, we remanded this case to the trial court, with directions to conduct hearings to determine the existence, availability, producibility, and relevancy of certain pretrial statements of witnesses who testified at the trial. People v. Sumner, 72 Ill App2d 258, 218 NE2d 236 (4th Dist 1966).

The purpose of that remandment was to determine whether or not impeachment evidence existed which should have been given to the defendant for his attorney’s use at the trial. The inquiry was framed upon the issues of whether such evidence, if it existed, was producible and whether the failure to produce it at the trial for the use of the defendant had a prejudicial effect on the result of that trial.

That hearing has been conducted and the trial court has rendered its opinion and judgment which determined that certain statements existed and should have been produced for use by the defendant but that the effect of the failure to do so was not prejudicial.

A total of fourteen pretrial statements or memoranda were in the F. B. I. files as a result of its investigation of the defendant’s activities. Eleven of these had been given by the F. B. I. to the state’s attorney of Vermilion County prior to trial. Three of these eleven had been given to defendant. The trial court held that the eight remaining statements or memoranda were the only ones which were producible at the demand of defendant at the trial since the remaining three documents the F. B. I. had retained were not in possession of the state’s attorney at any time here relevant. People v. Wright, 30 Ill2d 519, 198 NE2d 316, 321 (1964).

The present appeal brings before us only the issues determined in the subsequent proceeding. The record in this case as made following remandment clearly demonstrates that the trial court, the state’s attorney, the attorney for the defendant, and the F. B. I. cooperated to conduct a hearing which procedurally complied with the mandate of our former opinion.

Defendant’s primary contention here, however, is that the decision of the trial court that the error committed in failing to give the defendant’s attorney access to the statements and summaries of statements in the hands of the prosecution was not prejudicial, is itself error. Two reasons are assigned in support of this contention. First, defendant contends that since the withheld accounts of conversations with the witnesses Maddox and Curtis contain matters which are contradictory to their testimony at the trial, the “harmless error” doctrine does not apply and reversal is required. Second, since the statements attributed to the witness Maddox contain evidentiary material favorable to the defendant which was not disclosed by the prosecution, concealment or suppression of evidence requiring a new trial occurred. The new matter in this statement would tend to negate a connection between the barrels delivered by Maddox and the defendant to the dump at Stanford, Illinois, and the death of Herschel Williams. Resolution of these contentions requires an analysis of the content of the statements and the relationship of the material in them to the evidence at the trial.

There is a discussion of the evidence and the original rulings of the trial court which resulted in the hearing from which this appeal arises in our earlier opinion. The testimony given by Maddox was one of the keys to the prosecution’s case. His trial testimony was to the effect that in April or May of 1963, on a Sunday, the defendant called Maddox to load and haul two barrels, one of which was painted and the other black, in his father’s %-ton pickup truck, from Danville to a little town called Stanford near Bloomington, Illinois, which he did. The “old barrel” was light but the painted barrel required two people to lift it. Other evidence very clearly indicated that the decedent was never seen alive subsequent to March 25, 1963. His dismembered body was later discovered in a barrel in a dump near Stanford, Illinois. During the original F. B. I. investigation, Maddox had been interviewed three times, on May 15, 19, and 27, 1964. The results of these interviews had been transcribed by the agent conducting them, substantially verbatim, into one document. This document, although producible at the trial upon defendant’s demand, was one of the documents which the court did not order the state’s attorney to produce.

The prosecution had given the defendant, prior to trial, a signed statement of Maddox taken on July 10, 1964, by West, a deputy sheriff. This statement was used by the defendant’s counsel in cross-examining this witness at the trial. The trial court, in its findings and order, noted the discrepancies which exist between the testimony of Maddox at the trial, the statements in May to the F. B. I., and the statement in July to Deputy Sheriff West. We set them forth verbatim as they appear both in the trial court’s order and the memorandum submitted by the defendant:

“TESTIMONY AT THE _TRIAL_
A. IDENTIFICATION OF THE BARREL
Witness: Maddox
Rec. 116
‘One was old and rusty and had a few holes in it., the other was fairly new’ — ‘The old one was rusty brown,’ the other was ‘purple and white.’
117
‘The rusty one I could lift myself, the other Sumner had to help me — it was heavy.’
119
‘The flap on the barrel was cut, twigs and branches sticking through the top.’
STATEMENTS
Statement 5/19/66 [sic, 5/19/ 64]:
‘Both drums had tops on them and one had four holes in it.’ Did not recall any identifying characteristics about the drums. Then later statement: ‘One barrel was green and white and had no top’ and it was full of paper and rags. Second barrel was black and had a top with holes about 2Vz” to 3" in diameter. The green and white one was light but took both men to load the black one.
Statement to West 7/10/64:
One was black and the other purple and white.
TESTIMONY AT THE TRIAL — Cont.
128
‘Identified the barrel by the color and the way the flap was on it — purple and white.’
129
Top was cut and bent up.
133
This also was a means of identification.
NOTE:
Exhibit 1 — the barrel — offered in evidence was purple and white, the lid cut completely off with no flap of any kind and when found appeared flush with concrete.
B. OTHER INCONSISTENCIES
Rec. 113-115
Abst. 5
Maddox testified in the latter part of April — on a Sunday —the defendant called Mad- •, , . , , dox and wanted him to do v n 7. c some hauling for him. Said he had to go and pick up barber equipment.
STATEMENTS — Cont.
1. Statement to F.B.I.
„ , , lTT ... 4. Maddox stated: He did not recall taking any type of trash or oil drums from Danville to Stanford for any°ne at any
Statement to F.B.I. 5/19/64:
,, , , , . ,, , ,, , Maddox stated m the latter part „ _ 1 .... 7 of December, 1962, or the early , « T f J™y l963 he hauled the drums to the Bloomington area.
Statement to F.B.I. 5/27/64:
Maddox stated that one day in December, 1962, Don (the defendant) called and asked him to haul some barber equipment to Danville; that Maddox drove to Don’s shop and Don told him he had some things to take to the dump en route (and went on to
TESTIMONY AT THE TRIAL — Cont.
Rec. 130 & 131 Abst. 9
Maddox testified that he had not known the defendant too long — about five or six months; that he got his hair cut at the defendant’s shop.
Rec. 133-135 Abst. 9
Maddox stated he did not know Jessie Sumner by that name. He knew him as Don. He did not know his last name either.
STATEMENTS — Cont.
state that he and the defendant took two barrels to Stanford, Illinois).
Statement to Wm. West 7/ 10/64:
Maddox told West that somewhere around the latter part of December, 1962, or the first part of January, 1963, they did the hauling of the barrels to Stanford, Illinois.
Statement to West 7/10/64:
Maddox stated: ‘Sumner told him they were going to dump it right outside of Stanford, Illinois.’
2. Identification of the defendant:
Statement to F.B.I. 5/15/64:
Maddox stated he did not recall knowing a Jessie Donald Sumner.
Statement to Wm. West 7/ 10/64:
When asked why he denied knowing Donald Sumner he stated he did not know the name Jessie Sumner. That in the meantime he had talked to his mother by phone and she had told him that if he knew anything it was his duty to tell the officers.
Statement to F.B.I. 5/19/64:
He stated that he had known the defendant for approximate-
TESTIMONY AT THE TRIAL — Cent.
C. LOCATION OF THE DUMP
Rec. 122
Abst. 78 [sic, 7]
‘We was going down the highway just about the city limits of Stanford we turned off to the right, a paved road, went down a little ways and the road turned off again to the right for a dirt road, and right there was a dump, and we pulled in and backed the truck up and dumped the barrels.’
Abst. 11
McElvaney described the location of the dump as being on a black topped road at what they called Sportsman’s Lake near Stanford.
Rec. 150 [sic, 149]
Abst. 11
McElvaney testified: ‘It’s on a black topped road, oh, I’d say a mile or a mile and a half east of Stanford.’
D. STATEMENT OF CURTIS WITH REFERENCE TO CONVERSATION WITH THE DEFENDANT
Rec. 295
Abst. 26
Curtis testified that he met the defendant in January,
STATEMENTS — Cent.
ly one year and had gone with his niece, Judy Shatto.
Statement 5/27/64:
‘About 300 yards from the city limits sign for Stanford they turned off a paved road to the right. As they proceeded up this road two miles they turned off on a dirt road to the right and continued another two miles.’ Maddox said that he observed a gully being used as a dump and saw trash, including old appliances in the gully then he went 200 feet along the edge of the gully to the end where they dumped the trash, including the barrels into the gully.
Statement to F.B.I. 6/29/64:
He stated that he was briefly acquainted with Jessie Donald Sumner in the prison barber
TESTIMONY AT THE TRIAL — Cont.
1964; saw Mm once a week; talked to Mm frequently; was pretty well acquainted with him.
STATEMENTS — Cont.
shop during the first part of June, 1964 (which incidently [sic] is subsequent to the date of the discovery of the body of Herschel Williams).”

In addition to the discrepancies noted above, in May, 1964, at the second interview, Maddox recognized the defendant and identified him as “Don the Barber.” He also recognized the decedent, Herschel Williams, by photograph, but he stated that Williams was the person who helped him load barber equipment into his truck following the dumping of the barrels at a little town just outside Bloomington.

At the third interview, on May 27, 1964, Maddox confirmed the May 19 version and reaffirmed that he saw Herschel Williams alive in Stanford after the barrels were dumped. In this statement, he also says that “he was sure he saw Williams on the Street in Danville at least twice in the next two months after this incident . . . .”

The statement of Curtis, which was not produced, was taken on June 29, 1964, and indicated that he had met the defendant, Sumner, in the prison barbershop during the first part of June, 1964. This is different from his testimony at the trial that he met the defendant in January, 1964, and saw him on more than one occasion— about once a week; that he was pretty well acquainted with him. The first meeting, if it took place at the time given in the statement, occurred after the discovery of the body of Herschel Williams was publicized.

The material in the nonproduced statements of these two witnesses is not so strongly exculpatory nor so in conflict with the testimony at the trial that its non-production was a violation of due process. Brady v. State of Maryland, 373 US 83, 10 L Ed2d 215, 83 S Ct 1194 (1963), relied upon by the defendant, involved failure of the prosecution to advise the defendant that an accomplice had confessed to the actual strangulation of the victim for which the defendant was being tried as a principal. The discrepancies in the nonproduced statements here are not of this magnitude. The cases relied upon by defendant on this point are distinguishable by the fact that the statement withheld was directly, not inferentially, exculpatory. Evidence is not suppressed when the prosecutor fails to bring out every inconsistency in pretrial statements of witnesses compared with their testimony, nor when he fails to advise the defendant that matters were inquired into prior to trial that were not brought out by the testimony of the witness. To so hold would interfere to an unwarranted degree in the trial tactics and trial preparation of the state’s attorney. The abuse sought to be corrected is amply controlled by surrender, at the trial, of the pretrial statements of the witness testifying, in the mode set forth in People v. Wolff, 19 Ill2d 318, 167 NE2d 197 (1960), for use by defendant in cross-examination. For these reasons, we reject the contention that this case must be reversed for the concealment or suppression of evidence.

The rule requiring production of these statements and memoranda as announced in People v. Wolff, 19 Ill2d 318, 167 NE2d 197 (1960), while based upon considerations of fundamental fairness, as developed in the federal-court system by both judicial decision and statute (Palermo v. United States, 360 US 343, 3 L Ed2d 1287, 79 S Ct 1217 (1959)), never has been based upon any specific substantive constitutional guarantee. It is a rule of procedure designed to further the fair and just administration of criminal justice. Campbell v. United States, 373 US 487, 10 L Ed2d 501, 83 S Ct 1356 (1963). There will be many occasions, as here, where the diserepancies disclosed during that investigation are a proper matter for cross-examination and yet are not directly exculpatory of the defendant to the point that bad faith on the part of the prosecution must be legally presumed through failure to disclose the existence of the contradictory statement. In other cases, the failure to produce the statements, while improper, cannot conceivably have affected the result of the trial either because the statement bears upon the testimony of only one of many witnesses whose testimony is merely cumulative, People v. Wolff, 19 Ill2d 318, 167 NE2d 197 (1960), or the evidence withheld from inspection did not concern an issue which was contested at the trial, People v. Tribbett, 90 Ill App2d 296, 232 NE2d 523 (4th Dist 1967).

The test, then, of the extent of the error committed here by failure to give these statements, in the hands of the prosecution, to the defendant upon demand is empirical and must be made on an ad hoc basis. Necessarily, therefore, the standards by which the extent of error must be judged are those standards applicable to the doctrine of harmless error. That test and standard is that the error could not be said to have reasonably affected the verdict or that there was other evidence which established the defendant’s guilt beyond a reasonable doubt.

However, when the credibility of a defendant is impeached by showing a prior conviction established to have been invalid, this error requires a reversal notwithstanding the quantum of remaining competent evidence to sustain the conviction. People v. Shook, 35 Ill2d 597, 221 NE2d 290 (1966). Likewise, error in the admission of a confession of the defendant cannot be harmless error, and “a mere mechanical subtraction of the confession (s) from the competent evidence” is not an appropriate measure of the harm occasioned by the error. People v. Mason, 38 Ill2d 411, 231 NE2d 393 (1967). In People v. Rhodes, 38 Ill2d 389, 231 NE2d 400 (1967), the court held that improperly admitted wire-tapping evidence did not preclude a conviction when there was other and independent evidence to establish guilt. In this case, as we stated in our earlier opinion, it was error to deny the statements now in the record to the defendant on his demand. The detailed analysis of these statements contained in the opinion of the trial court indicates, however, that to the extent that the information therein contained could have been used for impeachment, it was either merely cumulative or related to details ancillary to the substance of the testimony received at the trial.

It is clear that had the statements been available, there would have been available to the defendant a basis for impeachment. We are satisfied, however, that the variations between testimony and statement as to dates, color and description of the barrels, and other details were not so grave as to reasonably affect the verdict of the jury. The finding that the error was not prejudicial is affirmed. See Rosenberg v. United States, 360 US 367, 3 L Ed2d 1304, 79 S Ct 1231 (1959).

Judgment affirmed.

SMITH, P. J. and TRAPP, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Lawrence Knoll and Alfred Knoll, Plaintiffs-Appellants, v. Roy G. Swanson and Louis Thaden, Commissioner of Highways of Butler Township, Vermilion County, Illinois, Defendants-Appellees.
    Gen. No. 10,912.
    Fourth District.
    February 28, 1968.

      Albert Saikley, of Danville, for appellants.
    Dobbins, Fraker & Tennant (French L. Fraker, of counsel), and Paul E. Karlstrom, of Champaign, for appellees.
   CRAVEN, J.,

delivered the opinion of the court.

This is an appeal from the judgment of the circuit court of Vermilion County dismissing with prejudice, at plaintiffs’ costs, plaintiffs’ complaint as amended and permanently enjoining plaintiffs from filing or further prosecuting the cause of action or any other cause of action based on the facts alleged. The case arises out of a dispute over natural surface water drainage obstruction and an alleged oral settlement of the causes of action which plaintiffs thereafter repudiated.

Plaintiffs, Lawrence Knoll and Alfred Knoll, were owners of farmland in Butler Township, Vermilion County, situated adjacent to the east of farmland owned by defendant Roy G. Swanson. The farms were separated by a gravel township road running north and south.

Plaintiffs filed their complaint alleging that the farms were so situated that the natural drainage of surface waters of approximately 50 acres of plaintiffs’ land was to the west and northwest from the land of plaintiffs across the gravel road, through a culvert, and onto and over Swanson’s land; that on October 17, 1963, Swanson constructed an earthen levee or dam approximately 201 feet in length, 14 inches above the level of the gravel road and 27 inches above the level of his land west of the road; that the surface waters off plaintiffs’ land were turned back to the east onto their land and were obstructed so as to accumulate on plaintiffs’ land. Plaintiffs claimed damages to their crops and to the basement of their residence. They sought a permanent injunction against Swanson’s obstructing the natural flow of surface water and a mandatory injunction requiring him to remove the levee and restore the natural state.

Count II of the complaint alleged that defendant Louis Thaden, as Commissioner of Highways of the Township, in 1989, had graveled the township road and removed a culvert under the highway into which tile drains of plaintiffs’ land had drained for many years; that he failed to replace the culvert which resulted in failure of proper outlet for plaintiffs’ land tiles, causing surface waters in times of excessive rainfall to back up onto their lands and to occasion numerous ponds and wet places; that periodically plaintiffs had requested Thaden to replace the culvert which he promised to do, but that he had failed to do so. Plaintiffs complained of damages to crops and reduction in value of their land because of Thaden’s acts, and prayed for $5,000 damages and a mandatory injunction.

In Count III, plaintiffs complained that Thaden, in 1954, erected a ridge of dirt close to the fence line of plaintiffs’ land, 5 inches above the road level, obstructing the natural flow of surface water from plaintiffs’ land across the highway. Also, plaintiffs contended that in 1962, Thaden hauled chunks of sod on the west side of the road near the position of the ridge, thereby further obstructing the surface waters and throwing them back upon plaintiffs’ land, resulting in crop damages of $5,000.

Defendant Thaden filed a motion to dismiss on the grounds that the rights were barred by the statute of limitations or laches, and on other grounds. This motion was denied and an answer denying the material allegations was filed. Defendant Swanson also filed a denial answer.

Plaintiffs filed an amendment specifying additional dates when the waters had backed up onto their land— in 1959, 1960, 1961 and 1962 — and damaged the land.

When the case was called to trial on June 2, 1965, the court conferred in chambers with all the counsel and parties, instructing them to make all reasonable efforts to settle the suit. Several hours of settlement negotiations were had. Defendants offered a compromise settlement proposal, which plaintiffs rejected. Thereafter, plaintiffs’ attorney made a settlement proposal.

After a short time, defendants indicated their acceptance. This proposal provided that the parties were to select a competent, disinterested civil engineer to view the premises, to investigate the drainage situation in dispute, to arrive at factual findings, and to make recommendations. The proposal, further, was that the findings of the engineer would be binding and that the dispute would be settled in accordance with his findings and recommendation. Thaden was to replace the culvert as formerly allegedly located and crop damages against him were to be waived.

The day following the making of such proposal by plaintiffs through their attorney and the indication by defendants of its acceptance, counsel for plaintiffs wrote a letter to counsel for defendants referring to the proposal and requesting that defendants pick an engineer and advise plaintiffs’ counsel his name with dispatch. The next day, June 4, defendants’ counsel sent a letter to plaintiffs’ counsel, designating the name of an engineer acceptable to him.

On June 9, plaintiffs’ counsel sent a letter to defendants’ counsel, stating that his clients had been in his office the day prior and stated they did not wish to enter into any settlement or be bound by the engineer; that the plaintiffs did not understand the prior understanding and wanted the case to be settled by a trial. He stated that the court should be informed that settlement was not possible and that the case should be set down for trial.

Defendants then filed their motion to dismiss the complaint and for injunction to enjoin prosecution, setting up that there had been a binding settlement agreement, attached to their motion the various letters, and contended that because of the wilful repudiation of the settlement agreement plaintiffs did not come into equity with “clean hands” and should be refused equitable relief. The court heard the motion and granted it, entering its order finding that the cause of action was settled by oral agreement of the parties and their respective counsel on June 2,1965.

The court’s order found that the parties agreed to select a competent, disinterested civil engineer to make certain findings and recommendations which would be binding and settle the dispute; that they also agreed that defendant Thaden would replace the culvert and crop damages against him would be waived; that plaintiffs repudiated the agreement and refused to perform its terms; and that plaintiffs by so agreeing had extinguished their causes of action and by their repudiation had refused to do equity and did not have “clean hands,” so that they were not entitled to equitable relief.

The court, after hearing and denying a motion by plaintiffs for further hearing and reconsideration, entered its judgment from which the appeal is taken seeking reversal or, in the alternative, reversal and remandment for a new trial. Plaintiffs’ trial-court counsel have withdrawn and new counsel now prosecutes this appeal.

Settlement between the parties of disputed claims is encouraged and favored by the courts and should be given full force and effect. Thus, the Illinois Supreme Court, in Bingham v. Browning, 197 Ill 122, 64 NE 317 (1902), quoted with approval the statement in Farmers’ Bank of Amsterdam v. Blair, 44 Barb (NY) 652:

“Compromises are to be encouraged, because they promote peace, and when there is no fraud, and the parties meet on equal terms and adjust their differences, the court will not overlook the compromise, but will hold the parties concluded by the settlement/’

A like approval was given to an agreement reached in an action in equity in Sontag v. New York Life Ins. Co., 305 Ill App 405, 27 NE2d 628 (1st Dist 1940).

An agreement of compromise and settlement need not be in writing unless it is within the Statute of Frauds. Millers’ Nat. Ins. Co. v. Kinneard, 136 Ill 199, 26 NE 368 (1891). There is nothing in the instant case within the prohibition of that statute. The mutual concessions of ending the litigation constitute sufficient valid and adequate consideration to support the agreement to end a bona fide dispute or a doubtful claim.

Where an agreement of settlement is relied upon, the burden of proving it is upon the party alleging it. General rules of evidence apply to determine the existence of such an agreement, the matters included in it, and its performance or breach. While a settlement in writing may be easier of proof than that of the instant case, we note that no contrary evidence and no counter-affidavits were presented here to the trial court to the motion to dismiss and its attached letter exhibits. The letters of plaintiffs’ attorney attached to the motion refer to “the understanding reached between us and our clients yesterday.” Again, “As you understand, the reaching of the agreement yesterday was very difficult, no doubt for all of us, in negotiating between the two sides.” These statements leave no doubt that an agreement to settle was reached. No contrary evidence being in the record to the allegations of the motion to dismiss, supported as they are by the attached exhibits, it shows a full settlement of all matters in the proceedings was contemplated.

In the absence of mistake or fraud, such a settlement, adequately established in the record, is conclusive on the parties as to all matters included in the settlement and will not lightly be disturbed or set aside. No mistake of law or facts, or lack of understanding of the settlement, is shown here which would justify this court in disturbing the settlement agreement.

Since there was a valid settlement agreement made in this case, it merged all included claims and causes of action, and is effectively a bar to any further prosecution of such claims in this or any other litigation. Having determined this, we are not called upon to determine what remedy might have been or might yet be available to the parties to enforce and carry out the terms of the settlement. The action of the circuit court of Vermilion County in dismissing the pending action, with prejudice, and enjoining further prosecution of the cause of action is affirmed.

Judgment affirmed.

SMITH, P. J. and TRAPP, J., concur.


author: SMITH, P. J.

text:
    In the Matter of the Estate of Wilbur J. Gullett, Deceased. Alan Wyneken, Petitioner-Appellant, v. Logan County Bank, Administrator with Will Annexed of the Estate of Wilbur J. Gullett, Deceased, Respondent Appellee.
    Gen. No. 10,952.
    Fourth District.
    February 29, 1968.

      Edwin C. Mills, of Lincoln, for appellant.
    No appearance made in behalf of appellee.
   SMITH, P. J.

The appellant, Alan Wyneken, a son-in-law of the testator, appeals from an order of the Probate Division of Logan County Circuit Court removing him as the sole remaining executor of the Gullett will.

The chronology of events are briefly these: Wyneken and a coexecutor were issued letters testamentary on June 6,1966, and about this same time, Wyneken and his wife, one of the three daughters of the testator, moved into the residence property, an asset of the estate, under an arrangement with the coexecutor that they would pay $100 per month rent. It was decided that not too much activity should take place in the estate until the time for filing a will contest would pass. The will directed the executors to liquidate the estate and divide it among the three heirs. In April, 1967, they listed the residence property at $32,000 and announced that it would be available for inspection after June 1, 1967. A local real-estate broker informed the coexecutor that when he undertook to show the house in the latter part of June, Mrs. Wyneken informed him that the house would not be available for a showing for a month or two. The coexecutor tried to contact Wyneken and failed. On July 5, he wrote a letter to Wyneken reciting the above facts, complained of the failure to pay the rental, the failure to pay the 1966 real-estate taxes, and complained that he was embarrassed at not being able to show the property and advising Wyneken he should avoid situations where his own personal interests by self-dealing are brought into conflict with the interests of the estate and that he had placed himself in a very highly vulnerable position and that he considered the situation serious. He stated that unless Wyneken and his wife vacated the residence by July 15, and deposited the delinquent rentals, he would submit to the court his resignation as coexecutor with the request that both of them be replaced with a successor executor. Wyneken claimed he never got this letter. On July 31, the coexecutor filed a petition for leave to resign, tendered his resignation, and suggested that both coexecutors be replaced with a successor. This petition was set for hearing for September 5 and Wyneken and the three heirs were notified. None of them appeared. The coexecutor presented a copy of his letter of July 5, and was interrogated by the court about the condition of the estate. Leave to resign was granted and the coexecutor was ordered to file a report within 10 days. As a result of this hearing, the court on its own motion issued a citation against Wyneken directing him to show cause why he should not be removed as executor because of (a) waste and/or mismanagement of the estate; (b) conducting himself in such a manner as to endanger his cofiduciary. This was served on Wyneken on September 6, and the hearing was set September 18. Wyneken appeared without counsel and was interrogated by the court about the condition of the estate. The coexecutor was not present at the moment and at Wyneken’s request, he was called over. The coexecutor advised the court that Wyneken had asked him to continue or withdraw his resignation, but that his decision was irrevocable and his resignation was final. At the conclusion of the hearing, the court revoked Wyneken’s letters.

On October 17, Wyneken filed a motion to vacate this order of revocation and attached to it written statements of the three heirs-at-law who joined in his motion and released the estate and the executor from liability for damage for the supposed mismanagement of said estate. At this hearing, the coexecutor testified not only as to matters covered in his September 5 testimony, but also with respect to the lapse of insurance on the house, the rental payments, the status of an Oldsmobile automobile that was being used by and driven without insurance by Wyneken. At the conclusion of this hearing, the court on November 3, entered an order specifically finding that Wyneken had failed to pay the 1966 taxes, that both executors had allowed the insurance on the house to lapse, that Wyneken transferred title to the decedent’s car to his own name and failed to keep it insured, that Wyneken had no bookkeeping system and mingled funds of the estate of Wilbur J. Gullett and Mildred S. Gullett, his predeceased wife, that Wyneken had failed to make proper payments of the rentals incident to his tenancy of the house and that neither executor knew anything about some land in Jefferson County. Wyneken’s motions to be reinstated as executor were denied and this appeal follows.

It is urged on appeal that the testimony taken on September 5 during the absence of Wyneken should not have been considered by the court in his September 18 order of removal and that testimony taken thereafter had no bearing on the validity of the original order. This position, we think, is without merit. Wyneken had a choice — either to appeal from the order of September 18 or to do as he did — file a motion to vacate that order. A further and full hearing was conducted on this motion and further testimony taken. The issue was in effect retried. We need not consider whether the evidence before the court on September 18 was adequate to warrant the removal or sufficient to sustain the order of removal. The subsequent hearing furnished a full opportunity to correct the order of revocation, if in error. It is true that the taxes were paid after the citation was issued — it is true that the rent was paid up after the citation was issued. The conduct of the respondent and management of the estate does not measure up to the standard of care and attention that a reasonable businessman would exercise in the administration of his own personal affairs. As Chief Judge Cardozo said in Meinhard v. Salmon, 249 NY 458, 164 NE 545, and quoted in Nonnast v. Northern Trust Company, 374 Ill 248, 29 NE2d 251, thusly:

. . A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. . . .”

The past is frequently the prologue for the future. In re Estate of Glenos, 50 Ill App2d 89, 97, 200 NE2d 65, 68, it is stated:

“The fact that the mismanagement or attempted fraud here was merely incipient, with the estate suffering no pecuniary loss, should not be considered relevant in proceedings to remove the executor for mismanagement, as one reason for removal is certainly to protect the estate from future mismanagement.”

To this end, it is clear that the coexecutor, a lawyer, resigned because of want of cooperation on the part of the respondent. Neither the respondent nor the heirs were concerned when the coexecutor filed his petition to resign. The coexecutor was sufficiently concerned to resign. The issuance of the citation prompted the payment of taxes and the rent. The respondent was given a second full opportunity to justify his conduct on the motion to vacate his order of removal. He well knew that his coexecutor had filed a petition to resign. He inquired neither of the executor nor of the court why this was so. He did not appear at the hearing where the reasons might have reasonbly been ascertained. In Glenos, it is stated that an attoreny for an estate is under a duty to inform the court of any suspicion of wrongdoing on the part of an executor. The coexecutor, also as an attorney, was an officer of the court and in our judgment was under a dual obligation to inform the court of possible wrongdoing apparent to him. It seems clear that the coexecutor here was alarmed and that the court was alarmed at the conduct of the respondent. This concern is not without foundation in this record. It was clearly sufficient to trigger an appropriate inquiry by the court and the inquiry was properly initiated.

The respondent likewise contends that the co-executor, being an attorney, was the guiding light in the estate and respondent depended upon him for guidance. If this is the case, it seems quite strange that he did not answer the coexecutor’s telephone calls nor did he consult him from the time his petition to resign was filed in July until the citation was actually issued upon the respondent. He did not consult him concerning the transfer of title to the automobile. He did not consult him about the two-month delay after June 1 for showing the property which they had advertised. He offered no substantial explanation for any of the dilatory action or non-action on his part at any time. The coexecutor, as well as the court, was justified in the conclusion that he conducted himself in such a manner as to endanger his cofiduciary or the surety on his bond, a ground for removal set forth in Ill Rev Stats 1967, c 3, § 276. We are not justified in disturbing the finding of the trial court unless we can say that that finding was against the manifest weight of the evidence. On this record, this we cannot do.

The fact that Wyneken wants to be reinstated and that the heirs are asking him to be reinstated is by no means conclusive. The orderly disposition of estates in an expeditious manner overrides the desire or the willingness of the heirs in an estate to approve its administration in a careless and inattentive manner. By no stretch of the imagination was the court’s action precipitous, arbitrary, or capricious. We think the trial court properly concluded that yesterday’s conduct provides the pattern for tomorrow’s activities. The proper administration of this estate can only be assured by the appointment of an independent administrator with the will annexed and this the court has done and its action should be and it is hereby affirmed.

Affirmed.

CRAVEN and TRAPP, JJ., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Appellee, v. James Lee Harris, Appellant.
    Gen. No. 51,293.
    First District, Third Division.
    February 29, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

James Harris was found guilty of armed robbery in a non jury trial and was sentenced to the penitentiary for a period of not less than 15 years and not more than 35 years.

About 1:30 p. m. on a Saturday afternoon in October 1964, Charles Irwin wanted to cash a check. The banks were closed so he took a bus to a tavern where he knew the proprietor. He bought a six-can carton of beer and cashed the check. The money he received was in excess of $130 and was in tens, fives and singles. He put the roll of bills in his pocket next to his wallet and returned home. As he went up the front steps of his home he felt something shoved in his back. He turned and saw a man in a black leather jacket pointing a gun at him. Irwin, who was 78 years old, resisted and suffered a bump on his head and three cuts on his arm. The robber’s hat came off during the struggle. He tore open the pocket where Irwin had placed his money, seized the money and Irwin’s wallet and ran. Irwin chased him down an alley but was outdistanced.

In the meantime a neighbor had called the police. Irwin hurried home but a police officer was there ahead of him. He got in the police car and they drove down the alley. As they emerged from the alley Irwin saw the defendant Harris about 100 feet away and pointed him out as the robber. The officer turned his car in Harris’ direction and, as he did so, Harris ran into another alley. The officer chased him by car and on foot. Irwin stayed in the car.

The chase led up and down side streets, through alleys and parking lots. Another squad car came along and joined in the chase. Finally Harris ran into a dead-end alley and was caught. After a struggle he was handcuffed and searched. A gun was found in one pocket and in another $140 in cash and a wallet which contained $4 and Irwin’s identification papers. Harris said he did not know how he happened to have the wallet in his pocket. He was taken to a police station.

The officer returned to his car and told Irwin: “We got him. We got the money and we got the pocketbook.” He showed Irwin his wallet and the money and drove him to the police station. At the station Irwin confronted the handcuffed man and identified him as the robber. Harris denied the robbery. He also denied that he owned the hat which had been recovered from Irwin’s steps. It was placed on his head and it fit him.

At bis trial Harris testified that he ran from the police because one of them fired a shot at him and he was afraid of being killed. He denied robbing Irwin or striking him with a gun. He admitted that the gun was his but denied having Irwin’s wallet in his possession. He said the money belonged to him and his sister; that his sister, with whom he lived, had given him $67.50, her half of their $135 monthly rent and that the balance was his own. He testified that he did not own a hat and that the one tried on at the station did not fit him.

The defendant’s first contentions are that he was denied due process of law because of the manner in which he was identified and that he was prejudiced because the hat was not produced at his trial.

At times in his testimony Irwin referred to the robber as wearing a black leather jacket and at one time said he knew Harris was the robber because of the jacket. These references, plus the police officer’s post-arrest remark: “We got the man,” and the confrontation at the police station with the lone, handcuffed defendant, form the basis for the denial of due process contention. Harris argues that Irwin did not know the facial features of the robber; that the officer’s remark convinced Irwin that the man who robbed him was captured; that he went to the police station prepared to identify any man shown to him by the police, and Harris happened to be that man.

Irwin’s identification was not limited to the jacket. He was robbed in the middle of the day. He turned, faced the robber and scuffled with him. He saw Harris’ face and he testified that he knew it when he pointed Harris out to the officer from the police car. The accuracy of this identification was confirmed by the developments which followed.

Irwin initiated the identification — not the police. They pursued Harris because of what Irwin told them — not because of their independent information or suspicion. Irwin did not go to the station to view a suspect arrested by the police. He went there to process the case against the man he had identified beforehand and perhaps to obtain his money and the papers from his wallet. The question asked him upon his arrival, “Is that him? ” was superfluous and his answer merely confirmed what he had previously told the police.

Furthermore, proof of Harris’ guilt did not depend upon Irwin’s identification. He ran away when the police car turned in his direction. He was apprehended a few minutes after the robbery. The proceeds of the robbery were found on him. The gun used in the robbery was in his possession. His flight, his exclusive and unexplained possession of Irwin’s wallet and his possession of the weapon are circumstances so incriminating that they would sustain his conviction without Irwin’s positive identification.

Under the total circumstances of this case, there was no violation of the defendant’s right of due process. The individual confrontation at the police station neither suggested nor induced Irwin’s identification and it did not taint his subsequent in-court identification. Stovall v. Denno, 388 US 293, 87 S Ct 1967, 18 L Ed2d 1199 (1967) and People v. Kincy, 72 Ill App2d 419, 219 NE2d 662 (1966) cases relied upon by the defendant do not support his position.

Harris claims that he was prejudiced because the State suppressed evidence which was material to his defense. The hat found at the scene of the crime was not in court. Harris implies that if the hat had been produced in court it would not have fit him and this would have proved that someone else committed the crime. He argues that the failure of the State to have the hat in court raises an inference negative to the State’s testimony that the hat fit him, and that the suppression of this evidence was also a deprivation of due process. The record does not disclose that at the time of trial the hat was in the possession of either the police or the State. The arresting officer testified that he did not know where the hat was and said that it had not been inventoried. There was no evidence impugning the truth of the officer’s assertion that the hat was not retained by the police, and no demand had been made before trial for its production. For all that the record shows, the hat may have been given to the defendant and may have been more available to him than to the State. What was said by the court in People v. Taylor, 35 Ill2d 341, 220 NE2d 164 (1966), is apropos here: “This is not a case such as Brady v. Maryland, 373 US 83, 10 L Ed2d 215 [relied upon by Harris] . . . where it was clear that the prosecution concealed information in its possession favorable to the defendant.” People v. Faulkner, 83 Ill App2d 54, 226 NE2d 467 (1967) also relied upon by Harris is not in point. In Faulkner, narcotics were found in clothing supposedly belonging to the accused. Faulkner, who was indicted for possession of narcotics, denied that the clothing was his. Proof that he owned the clothing was essential to the State’s case; without this proof Faulkner’s exclusive control of the narcotics could not be established. The clothing had not been tried on the defendant and it was not produced in court. The Appellate Court held that the State’s proof was deficient. In the present case ownership of the hat was not an essential element in the proof of the defendant’s guilt.

The last two contentions are that the trial judge questioned him at length and in doing so became a prosecutor rather than an impartial trier of the facts, and that the sentence imposed upon him was too severe.

The trial judge questioned the defendant after his attorney and the assistant State’s attorney had finished their examinations. In response to the court’s questions, Harris said that the gun was not found on him but in the alley where it had fallen out of his pocket; that the only wallet taken from him was his own and this was returned to him by the police. The judge asked him about his sister. He replied that he had expected her to be in court to tell about the rent money she had given him the day he was arrested. The judge offered to continue the case to the following morning so that his sister could be brought in. The defendant requested that this be done and the trial was postponed. The sister was in court the next day and substantially corroborated Harris’ testimony concerning the money. However, she said she gave him $135 not $67.50, and on cross-examination she said she could not remember the date she gave him the $135.

It is now urged that the trial judge’s insistence forced the defendant to bring in a witness whose testimony contradicted his, that this unwarranted meddling by the judge interfered with his trial strategy and that the searching and biased cross-examination by the judge prejudiced him. All of these accusations are unfounded. The judge’s questions were fair and his examination impartial. His questions made it possible for Harris to amplify and clarify his previous testimony. His offer, to postpone the trial so that Harris’ sister could testify was more than fair. Gratitude for extending this consideration to the defendant may not be expected but criticism for it is both undeserved and unkind. The case was not tried before a jury and there was nothing in the conduct of the trial prejudicial to the defendant.

In sentencing the defendant to a term of 15 to 35 years in the penitentiary the court observed that he would be eligible for parole at the end of 10 years, and that his robbing a 78-year-old man while armed with a gun and his prior record made a lesser sentence inappropriate. Harris had served two short sentences for petty larceny and a 3- to 10-year sentence for armed robbery. There is no sound reason for reducing the period of imprisonment imposed by the trial court.

The judgment is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sam Castanza, Defendant-Appellant.
    Gen. No. 51,844.
    First District, Third Division.
    February 29, 1968.
    Rehearing denied April 16, 1968.

      Samuel V. P. Banks and Anna R. Lavin, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order of revocation of probation. Defendant was originally granted probation on April 20, 1965, following his plea of guilty to a charge of violation of sections 8-2 and 11-19 of the Criminal Code (Ill Rev Stats 1963, c 38, §§ 8-2 and 11-19). Those sections prohibit conspiracy to solicit and pimping. The orders granting probation provided that defendant “shall not, during the period of said probation, violate any criminal law of the State of Illinois or any ordinance of any municipality of said State. . . .”

On June 8 and June 16, 1966, Castanza’s probation officer recommended to the trial court that a warrant issue for violation of probation because, on June 4, 1966, defendant had been arrested and charged with soliciting for prostitution and being a keeper of a house of ill fame. On June 16, 1966, the court issued rules to show cause why probation should not be terminated. On July 15, 1966, a hearing was held on the matter and the court, upon finding that there had been a violation of the terms of defendant’s probation orders, revoked and terminated them and sentenced defendant to a term of one year in the county jail.

Defendant contends on appeal that (1) the evidence failed to prove any solicitation for prostitution or that defendant was a keeper of a house of ill fame; (2) evidence was improperly admitted, over defendant’s objections, which related to activities of which defendant was given no notice nor opportunity to prepare against, thereby depriving him of due process, and (3) the decision was founded in part on conclusions of the court not fairly deducible from the evidence.

At the revocation hearing detective John McCormick testified that he entered a tavern called Vineyard A Go-Go on North Sheridan Road in Chicago about 10 p. m. on June 2, 1966. He was not in uniform. He sat down at the bar and began a conversation with the defendant by buying him a drink. McCormick said he was willing to pay money for a girl for purposes of prostitution, and defendant told him there was nothing there that night, but he should come back the following evening, a Friday. McCormick said that while he was in the tavern he observed defendant directing the bartender and the dancing girls in their duties.

He also stated that he observed numerous people come in, hand Castanza money, and leave. Castanza would then pocket the money and write some figures on pieces of paper.

McCormick returned to the tavern on June 3, 1966, about 11:30 p. m. He sat down at the bar and greeted Castanza who told Delana Rothchild to sit next to McCormick. After a conversation between the girl and the detective he told the defendant that he had offered her $40 to spend an hour with him in bed but that she refused and said she was sick. Castanza said, “Well, . . . she was sick.” McCormick added that he was going to leave because there were no girls around, to which Castanza replied, “Stick around, wait awhile, somebody will be in.”

Shortly after that conversation Diane Popek entered the tavern and took the seat next to McCormick, although there were other vacant seats at the bar. As she sat down Castanza grabbed the detective’s arm and said, “Talk to that girl, . . . she’ll take care of you.” McCormick talked with the girl and then told Castanza that she said she could not go with him (McCormick) because she had a date in 45 minutes. Castanza replied, “I’ll take care of things, I’ll fix you up.” He walked over to Popek and said, “Diane, this is a good friend of mine, I want you to take care of him. He will spend money with you.”

Another conversation between McCormick and Popek occurred, McCormick told her to wait a second, he got up from his seat, went over to Castanza and said he was going to Popek’s place and was going to pay her $20 to engage in sexual intercourse with him. He asked if that was too much. Castanza said, “No, do what you want, she’ll tell you what she wants.” The detective and the girl, who had been together for about 15 minutes, then left the tavern and went to her apartment.

McCormick related a conversation between him and Popek at the apartment concerning what he would get for his $20. The girl told him she would engage in sexual intercourse with him if he would wear a contraceptive. The girl undressed and got into bed and McCormick arrested her.

McCormick met his fellow officers, returned to the tavern, arrested defendant and searched the premises. Castanza cleared the cash register, ran a tape on the night’s receipts and pocketed the money. He then took keys from his front pocket and locked the front door. The tavern owner registration was in the name of Thomas Gatto. Castanza listed his occupation with the probation officer as an employee of the place. McCormick testified that Castanza told him he owned the place. Money other than the cash register receipts was confiscated from defendant along with several slips of paper containing first names and initials and figures.

Police officer William Meade testified that he was at the Vineyard A Go-Go on June 2nd. He saw the defendant answering the phone numerous times and giving directions to two dancing girls and the bartender. He also saw at least two persons come in, hand currency to Castanza and leave.

A police officer assigned to the “juice section” of the intelligence division, John Williams, examined three slips of paper recovered from Castanza and testified that, based on his investigating experience, the slips were records of usurious loans.

Diane Popek testified that she is not a prostitute and had never been arrested prior to this time. She stated that defendant did not tell her to take McCormick to her apartment. She admitted that she always kept contraceptives in her apartment and that, upon taking McCormick there, she undressed and got into bed.

Delana Rothchild testified that Castanza never asked her to commit acts of prostitution nor directed her in her work at the tavern. She testified that she took directions in her work from the bartender and she worked only for tips. She said she knew Castanza from the tavern and that he was in there about three or four nights a week.

Officers Palmeri and McCormick testified in rebuttal that in the squad car on the way to the tavern to arrest the defendant, Popek said Castanza had previously sent her three “tricks” for purposes of prostitution.

Defendant first contends that the evidence failed to prove any solicitation for prostitution by him or that he was a keeper of a house of ill fame. Section 11-14 of the Criminal Code provides in part:

“(a) Any person who performs, offers or agrees to perform any of the following acts for money commits an act of prostitution:
“ (1) Any act of sexual intercourse; or
“(2) Any act of deviate sexual conduct.”
(Ill Rev Stats 1965, c 38, § 11-14.)

Section 11-15 provides in part:

“ (a) Any person who performs any of the following acts commits soliciting for a prostitute:
“(1) Solicits another for the purpose of prostitution ; or
“(2) Arranges or offers to arrange a meeting of persons for the purpose of prostitution; or
“(3) Directs another to a place knowing such direction is for the purpose of prostitution.”
(Ill Rev Stats 1965, ch 38, § 11-15.)

The committee comments to this section state that it is not intended that it be necessary to show that actual acts of prostitution followed the solicitation and that financial benefit is not an element of the offense.

Section 11-17 provides in part:

“(a) Any person who has or exercises control over the use of any place which could offer seclusion or shelter for the practice of prostitution who performs any of the following acts keeps a place of prostitution:

“(1) Knowingly grants or permits the use of such place for the purpose of prostitution; or
“(2) Grants or permits the use of such place under circumstances from which he could reasonably know that the place is used or is to be used for purposes of prostitution; or
“(3) Permits the continued use of a place after becoming aware of facts or circumstances from which he should reasonably know that the place is being used for purposes of prostitution.”
(Ill Rev Stats 1965, ch 38, § 11-17.)

The committee comments point out that the crucial relation of an accused to the place is control of the premises. He may be the owner or lessor, a trespasser or an employee in the premises.

On June 4, 1966, defendant was charged with violating sections 11-15 and 11-17.

The parties do not agree as to what is the required quantum of proof in a hearing on revocation of probation, but the courts have held that defendant’s guilt need be proved by a preponderance of the evidence. People v. Headrick, 54 Ill App2d 44, 203 NE2d 157; People v. Price, 24 Ill App2d 364, 164 NE2d 528; People v. Dwyer, 57 Ill App2d 343, 206 NE2d 113. Furthermore, whether the proof had to be by clear and convincing evidence or by the mere preponderance of the evidence, the State, by its evidence, has satisfied both criteria.

In the instant case there was testimony by detective McCormick that he told the defendant he was looking for a girl for purposes of engaging in sexual intercourse for money; that is, prostitution. Defendant, knowing the tavern patron’s wishes on June 2nd, told him there was nothing available that night but he should come back the following evening. When the detective returned on June 3rd the defendant sent Delana Rothchild over to talk with the detective at the bar. When she refused McCormick’s proposition, Castanza said for him to wait around that someone would be in. Shortly thereafter Diane Popek arrived and sat down next to McCormick. Castanza came over to the detective and told him to talk to Popek and at the same time commented on her sexual capabilities. When the girl refused McCormick’s suggestion, Castanza told her to take care of McCormick. Soon after that McCormick told Castanza that she had agreed to have sexual intercourse with him for $20. When asked if that was too much Castanza said, “No, do what you want, she’ll tell you what she wants.”

It is clear from the above facts that Castanza arranged a meeting of persons for the purpose of prostitution. It cannot be said that he did not know what McCormick had in mind or that he was just passively involved. Although he did not formally introduce the parties he directed McCormick to Popek and interceded on behalf of the detective when the girl displayed reluctance.

On the evidence it can also be said that Castanza was keeping a house of ill fame. It has been shown that he knew arrangements were being made on the premises. Inasmuch as prostitution is committed by offering or agreeing to commit an act or acts of sexual intercourse or deviate sexual conduct for money, the acts within the tavern, as related by McCormick, showed the commission of prostitution. This is true although more details were worked out between Popek and McCormick at the girl’s apartment.

Defendant argues that he was not in control of the premises in that Thomas Gatto was the registered owner, and the State offered no proof that Castanza was even employed there. However, there was testimony that he answered the phone, instructed the bartender and directed the dancing girls. McCormick testified that Castanza told him that he owned the place. After his arrest the defendant emptied the cash register, ran a tape of the night’s receipts and pocketed the money. Upon leaving the premises, he took a key from his pocket and locked the front door. Castanza was registered with his probation officer as an employee of the Vineyard A Go-Go. Those circumstances are sufficient for the court to have found he was in control of the premises as that term is used in section 11-17 of the Criminal Code.

The conclusions of the court, that defendant had engaged in soliciting for prostitution and had kept a house of ill fame, were well founded on the evidence in the record.

Defendant next contends that evidence was improperly admitted, over his objections, which related to activities of which he was given no notice nor opportunity to prepare against, thereby depriving him of due process. The evidence complained of is that which allegedly pertained to Castanza’s operation of a juice racket. The testimony showed that two officers observed people enter the Vineyard A Go-Go, hand money to the defendant and walk out. They did not appear to buy anything in the tavern. One officer testified that Castanza would then write some figures on slips of paper. A third officer testified that, based on his investigation experience in the “juice section” of the intelligence division, he believed the slips of paper recovered from the defendant to be records of usurious loans. The defendant objected to that testimony as immaterial and the court said:

“The Court: It has a lot of bearing with me. I’m the one who placed him on probation, I am having a hearing to see whether or not I should revoke his probation. . . .
“The Court: The Court knows how these things operate, and the court knows that you couldn’t get these people to come in and testify, that they would be terrified. I am admitting the sixteen hundred ninety-four dollars and also People’s Exhibit 2 and also People’s Exhibit 1, the list that was taken from his person.
“It is connected up by two different police officers in the course of two nights, seeing different people coming into the place there and went over and handed him currency.
“And when they put him under arrest and searched him, they found the cash, so he evidently took money out of the envelopes. They are admitted in evidence.”

The defendant has cited cases which hold that a defendant at a hearing on revocation of probation is entitled to know in advance how he allegedly breached the probation order so as to be able to properly prepare his defense.

In People v. Dwyer, supra, the court held that the evidence did not sustain a finding that the defendant had violated his probation in the manner charged in the report of the probation officer. The court found that the evidence was even less convincing on the matters not charged in that report and added that the defendant was not advised prior to the hearing that he was being charged with those infractions. However, the main reason for reversal was the failure of proof on the points mentioned in the report.

In People v. Headrick, supra, the court affirmed the revocation even though evidence had been admitted on matters not charged in the notice because the defendant admitted one violation (of which he was given notice) of his probation.

In People v. Enright, 332 Ill App 655, 75 NE2d Ill, the court reversed the revocation of the defendant’s probation because he was given no notice of any of the charges against him and the court would allow no evidence on behalf of the defendant, thereby giving him no hearing at all.

It is clear that in none of the above cases did the court reverse the judgment on the grounds of admission of evidence of violations other than those of which the defendant was given notice.

In People v. Tranowski, 20 Ill2d 11, 169 NE2d 347, the defendant was charged with armed robbery. The evidence on that charge proved him guilty beyond a reasonable doubt. Evidence of other robberies closely connected to the one charged in the indictment and evidence of a killing of one of the alleged victims was admitted. The court ruled that the evidence of other robberies was properly admitted as tending to establish a scheme or design. However, the court said that evidence of the killing (the eyewitness was unable to identify the defendant) was improperly admitted in that it in no way tended to prove the defendant’s presence in the area or a scheme similar to the robbery charged in the indictment. Although the Supreme Court found that it was error for the trial court to have admitted that evidence, it continued and said on page 17:

“However, it is not the duty of this court to review the record in a criminal case to determine whether or not it is free from error. (People v. Sleezer, 9 Ill2d 57; People v. Davis, 406 Ill 215; People v. Cardinelli, 297 Ill 116.) It is not our policy to reverse a judgment of conviction merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error. (People v. Cavanaugh, 13 Ill2d 491; People v. Susanec, 398 Ill 507.) Where the competent evidence shows, beyond all reasonable doubt, that the defendant is guilty in a case where the jury are not the judge of the penalty to be inflicted upon the defendant, error will not ordinarily require reversal of the judgment of conviction. (People v. Guilfoyle, 321 Ill 93.) Where it is clear from the record that the jury could not have reasonably found the defendant not guilty, errors in the admission of evidence do not require reversal. People v. Burger, 259 Ill 284.”

At the close of all the evidence in the instant hearing the judge stated that he did not believe the testimony of the two girls who testified on behalf of Castanza. Defendant argues that the testimony of Delana Rothchild was uncontradicted and in no way impeached and, therefore, the court, as trier of fact, must believe her. It is the province of the trier of fact to weigh the evidence and determine the credibility of the witness. (People v. Ray, 80 Ill App2d 310, 225 NE2d 167; People v. Jennings, 84 Ill App2d 33, 226 NE2d 566.) This includes belief or disbelief of a witness’ testimony as well as resolving conflicts in evidence. Furthermore, Rothchild’s evidence as to Castanza’s relationship to the Vineyard A Go-Go was contradicted by the testimony of two officers who stated that they saw him giving directions to the tavern employees.

The judge added that he had listened carefully to the witnesses and observed their demeanor while testifying. He stated that the testimony that McCormick and Popek met and in 15 minutes were up in her apartment and she was undressed was inconsistent with her testimony that she was not a prostitute. The court added that it was Castanza who arranged the meeting of the officer and the girl and made the prostitution possible. From those remarks of the court it is clear that he based his revocation order on the finding that Castanza was soliciting for prostitution and was keeping a house of ill fame. The judge, at the time of his final determination made no reference to the alleged evidence of a juice racket. He was not revoking Castanza’s probation because of the alleged juice racket activity, and indeed the evidence of such activity was far from sufficient to justify any finding that he was carrying on a juice operation. The money he received could have been for any number of things. The slips of paper recovered from the defendant are not in the record in this court, and we cannot say that they were records of usurious loans. While we agree that the testimony should not have been admitted into evidence, it was not reversible error.

Defendant finally contends that the decision was founded in part on conclusions of the court not fairly deducible from the evidence. He complains of the admission of McCormick’s testimony concerning a conversation between Popek and him at her apartment. The defendant objected to the testimony on grounds of immateriality and that it was “outside the presence of the defendant.” The court in People v. Carpenter, 28 Ill2d 116, 120, 190 NE2d 738, said:

“Seemingly, this type of objection, frequently appearing in the trial records before this court, arises from a misconception of the rules of evidence, and a belief that any statement or conversation occurring in the absence of defendant is inadmissible. Such is not the law.
“While we are not clear as to the origin of this notion, it apparently is connected in some way with the hearsay rule. . . . The fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered. While the administration of an oath and the right of confrontation are also spoken of as necessary elements, the essential feature, without which testimonial offerings must be rejected, is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the act asserted. ... If this requirement is met, . . . the presence or absence of the defendant is immaterial.”

The conversation included no mention of Castanza, and both parties to the conversation were at the hearing and testified. That testimony did not violate the hearsay rule. What occurred at the apartment was merely a working out of the details of the prostitution agreement and was material to that transaction but, since we have held that the basic agreement was completed in the tavern, not essential. It was surplusage but not inadmissible merely because it occurred out of the presence of the defendant. Nor was it reversible error to have admitted it. It could not have harmed the defendant’s position since it did not refer to him nor did it materially change the prostitution arrangement.

Defendant argues that the evidence was clear that Castanza did not introduce the detective and Popek. We do not agree. Although he did not formally introduce them he told the detective to talk to that specific girl because she would take care of him (meaning she would satisfy his wish for a girl for prostitution purposes).

Finally the defendant argues that the court came to an erroneous conclusion that Castanza told McCormick to come back the second night for a girl and consequently on the second night Popek showed up. This is not, as defendant asserts, wholly irreconcilable with the testimony. On the contrary, the evidence clearly showed that Castanza told McCormick to return the second night because there would be girls or a girl there on Friday night. The second night, Friday, he sent one girl over to talk to McCormick and, when that attempt failed, he directed McCormick to Popek, with whom an agreement, to commit sexual intercourse of deviate sexual conduct for money, was reached.

The court reached the only conclusions possible from the evidence in this record.

For the foregoing reasons the judgment of the trial court is affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Bennetta Sue Baggett, Plaintiff-Appellee, v. Ashland Oil & Refining Company, a Corporation, Defendant-Appellant.
    Gen. No. 51,625.
    First District, First Division.
    March 4, 1968.
    Rehearing denied April 4, 1968.

      Vogel & Vogel, of Chicago (L. H. Vogel and Conrad F. Fleeter, of counsel), for appellant.
    James A. Dooley, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal by defendant, Ashland Oil Company, from a judgment entered upon the verdict of a jury in favor of plaintiff, Bennetta Sue Baggett, in the sum of $140,000 for injuries alleged to have been sustained by her as a direct and proximate result of the negligence of the defendant in its ownership, maintenance and control of an oil well pump.

The oil pump in question was located about seventy-five feet from the rear of the Baggett residence on premises owned by plaintiff’s father. There was a gate valve or faucet attached to the pump which could be easily turned, and from which would run crude oil. There was no fence or signs on the well or pump, warning third persons or prohibiting them from turning the faucet to obtain the oil. There was no gate or lock on the valve of the pump. The pump was tended to each day by defendant’s pumper; he would see that the motor was in good working order and test it, turning on the valve to see the pressure. On many occasions children would play on the pump itself using it as a kind of teeter-totter, and they would also turn on the valve and allow crude oil to run out of it; it was uncontradicted that these occurrences often took place in the presence of the pumper, but he did nothing about it. There was testimony to the effect that at a time, six months before the incident in which the plaintiff was injured, plaintiff’s father had a conversation with a man driving a pickup truck with Ashland Oil Company written on the side of it, at which time plaintiff’s father asked the man if he would erect a fence around the pump to protect the children. The man in the truck said he would see about it.

The occurrence out of which this lawsuit arises took place between 4:00 and 5:00 p. m. on September 23, 1958, in Rumsey, Kentucky, an oil-producing area. At this time, plaintiff was thirteen years of age and resided on a farm with her parents and seven brothers and sisters, ranging in age from three to seventeen years. In the one-mile area around the pump there were about fifty children. The plaintiff’s mother, Mary Elizabeth Roy (who had remarried since the death of her husband in 1962), testified that on the day in question she had lit a fire in the stove shortly before 3:15 p. m., at which time Bennetta Sue would return home from school. She further testified that she used crude oil from the well, on occasion, for the purpose of starting fires in the stove, but that this oil was not obtained directly from the pump; rather, it was taken from a large can that had been allowed to sit on the top of the brooder house overnight. When Mrs. Roy left the house to water the hogs, between 4:00 and 5:00 p. m., she encountered the plaintiff entering the house carrying a bucket of milk. The plaintiff’s mother testified that at this time a fire was visible in the stove. Later, Mrs. Roy heard an explosion, raced back to the house, and found that her daughter had already been taken to the hospital. She stated that Bennetta Sue had never witnessed her starting a fire with the oil from the large can.

The plaintiff testified that on the day of the occurrence she returned home from school and went to milk the cows. She brought the milk in the house and started to prepare some potatoes for cooking. She then looked in the stove to see if there was a fire burning, and seeing none, went out to the defendant’s pump to get some oil. She turned the faucet on the pump and filled an eight- to ten-ounce can about two-thirds full. She further testified that she then returned to the house and stirred the ashes in the stove to see if there were any “live ones.” Concluding that the fire was completely out, she poured the crude oil into the stove, and there was an explosion. Plaintiff’s dress caught on fire and she was severely burned.

On appeal, the defendant contends:

(1) That the trial court erred in denying its motion for a directed verdict and its motion for judgment notwithstanding the verdict because;
a. No act or omission of defendant was the proximate cause of plaintiff’s injuries, and
b. No competent evidence was introduced at trial showing that defendant was guilty of any negligence or misconduct.

The defendant claims that in any event a new trial should be granted because of the following errors:

(1) The court erred in allowing plaintiff’s brother, an ironworker, to give expert testimony regarding the mechanical operations of oil well pumps and the chemical composition of crude oil, without having been qualified as an expert in those fields;
(2) In admitting photographs of other oil wells which had not been seen by any witness;
(3) In allowing testimony that children had played upon defendant’s oil well pump when this was an irrelevant issue considering the fact that the act causing plaintiff’s injury occurred in plaintiff’s home;
(4) In allowing into evidence certain photographs which were posed by plaintiff to dramatize and exploit her injuries which were calculated to inflame and prejudice the jury.
(5) The amount of damages awarded were the result of passion, prejudice and sympathy on the part of the jury; and
(6) That the verdict of the jury was contrary to the manifest weight of the evidence.

The defendant argues that it is clear that no question of fact existed concerning the issues of negligence and proximate cause warranting the submission of these issues to the jury, and therefore, the court was in error in not directing a verdict for defendant, or in the alternative, entering a judgment n. o. v. The same standard is applicable in deciding whether to grant motions for directed verdicts or judgments n. o. v., and the trial judge ought to direct verdicts and enter judgments n. o. v. “. . . only in those cases in which all of the evidence when viewed in its aspect most favorable to the opponent so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504, at pages 513-514. Therefore, in determining whether the trial judge was correct in submitting the issue of defendant’s negligence to the jury we must, in reviewing the evidence, decide whether all of the evidence on the issue of negligence so overwhelmingly favored defendant that a verdict entered for plaintiff could never stand. We point out that both parties seem to be in complete accord that the laws of Kentucky and Illinois are not materially different in regard to the issues dispositive on this appeal.

The evidence adduced at trial established the fact that the defendant owned, exclusively controlled, and maintained an oil well and pump on premises owned by plaintiff’s father, where she resided. There were eight children living on the Baggett farm, and in a one-mile area surrounding the pump, there were approximately fifty more children. The pump was not fenced. The faucet from which the crude oil could be obtained was not locked and could be easily turned, and no warning signs had been posted by defendant. Expert testimony for plaintiff established the fact that crude oil can, under certain circumstances, be as dangerous as nitroglycerin. It was uncontradicted that defendant’s pumper had been present when children had played on and about the pump and he had neither warned them nor attempted to prevent them from continuing their activity. There was also testimony to the effect that a request had been made of one of defendant’s employees to fence the pump (for the purpose of protecting the children) about six months prior to the time of the accident, and that nothing had been done to remedy the condition.

What will constitute reasonable care in a particular case where negligence is alleged depends upon all of the facts and circumstances of the case, including any disadvantages or disabilities of the persons involved and the danger of injury to be avoided. ILP, Negligence, § 24. “The creator of certain conditions dangerous and hazardous to children because of their immature appreciation of such dangers and hazards must be held to a certain standard of conduct for the protection of such children in accordance with the attendant circumstances and conditions.” Kahn v. James Burton Co., 5 Ill2d 614, at Page 622, 126 NE2d 836. Of course, a party can only be held to such a standard of reasonable care as is consonant with the foreseeable risk of injury. Kuhn v. Goedde, 26 Ill App2d 123, 167 NE2d 805. We have concluded that the jury, in the instant case, could reasonably have found from the evidence that the defendant was negligent in failing to prevent the indiscriminate use of a dangerous substance (see Port Terminal R. Co. v. Brimer (Texas), 19 SW2d 111, 112 (1929)) under its control in an area inhabited by many children, and that serious injury was a foreseeable result of said negligence. In any event, we cannot say that all of the evidence introduced at trial so overwhelmingly favored defendant that a verdict for plaintiff, based upon that evidence, could never stand.

The defendant next contends that no act, or omission of it, was a proximate cause of plaintiff’s injury, arguing in its brief that: “The single fact most closely associated with plaintiff’s injury is her act of pouring oil on the fire in the cook stove in her home. What then is the significance of where or how the plaintiff may have obtained the oil?”

We cannot agree with defendant’s contention that there is no significance to the way in which the plaintiff obtained the oil in the instant case. The Illinois Supreme Court stated in Seith v. Commonwealth Elec. Co., 241 Ill 252, at page 259, 89 NE 425:

To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury; but, when it occurs it must appear that it was a natural and probable consequence of his negligence.

The question of proximate cause is generally one for the consideration of the jury. Merlo v. Public Service Co., 381 Ill 300, 318, 45 NE2d 665. Only when the facts are not in dispute, and there can be no difference of opinion among reasonable men as to the inferences to be drawn from them, does the issue of proximate cause become a question of law for the trial judge. Philabaum v. Lake Erie & Western R. Co., 315 Ill 131, 145 NE 806. We have concluded that the trial judge was correct in allowing the jury to consider the issues of proximate cause in the instant case. Although the precise form of the injury might not have been foreseeable, the jury might reasonably have found from the evidence that defendant’s negligent act, allowing children to obtain possession of crude oil, a dangerous substance, under circumstances where the oil was readily available for use in cooking, naturally led to the kind of incident in which the plaintiff was injured; and that an ordinarily prudent person ought to have foreseen the injuries sustained by plaintiff as a natural and probable consequence of his negligence.

The defendant cites Haar v. Vogelman’s Bakery, 312 Ky 307, 227 SW2d 423 (1950), claiming it is factually similar to the instant case. There an eight-year-old boy sought damages under the “attractive nuisance doctrine.” The court stated that each attractive nuisance case was to be decided on its own particular facts. In the case at bar, plaintiff did not proceed on the basis of the attractive nuisance doctrine nor was plaintiff a trespasser on defendant’s property — an essential element of the doctrine. In the Haar case the plaintiff was burned when a playmate accidentally kicked a bottle of flaming gasoline onto him; the gasoline had been obtained by the children at defendant’s garage. The court held that defendant had not been negligent in allowing the children to obtain the gasoline, because gasoline was in common household use and was not inherently dangerous. Crude oil, however, the substance involved in the instant case, is inherently dangerous. Hobart v. Sohio Petroleum Co., 255 F Supp 972 (1966). The court in Haar also found that the intervening action of plaintiff’s playmate was the proximate cause of the injuries sustained; in the case at bar, there was no third-party intervention to break the chain of causation from defendant’s negligent act to plaintiff’s injury. We have concluded, therefore, that the Haar case is not determinative because it is distinguishable on legal issues raised, and is also inapplicable on the facts.

The defendant also cites Dahl v. Valley Dredging Co., 125 Minn 90, 145 NW 796 (1914). In that case plaintiff’s three children trespassed on defendant’s property and obtained some naphtha which defendant’s employees had used for the purpose of “priming” an engine. The children threw the naphtha onto a burning pile of waste; the naphtha flared up and the children were badly burned. The court ruled that naphtha was a substance less dangerous than gasoline, and that defendant had no reason to anticipate that the children would come onto their property and take the naphtha from a shelf where it had been securely placed. Dahl is clearly inapplicable on the facts to the instant case in which an inherently dangerous substance was involved, and Ashland Oil Company had notice of the presence of children about their oil well and pump.

Greater Louisville First Federal Savings & Loan Ass’n v. Stone (Ky), 242 SW2d 739 (1951), cited by defendant was decided on the basis of the Haar decision which we have already found to be not in point. Scott v. Oscar Ewing Dairy Co. (Ky), 317 SW2d 477 (1958), involved dry ice, which is not an inherently dangerous substance, and is clearly inapplicable on the facts. Giddings v. Superior Oil Co., 106 Cal App2d 607, 235 P2d 843, was decided on the grounds that an oil well pump was not an attractive nuisance within the strict definition of that cause of action, and therefore, is distinguishable from the case at bar. The decision in Sinclair Prairie Oil Co. v. Smith, 186 Okla 631, 99 P2d 903, was also based upon the special requirements of the attractive nuisance doctrine. Furthermore, in that case the defendant had received no notice, prior to the accident, of the presence of children about its oil well pump, and the court ruled that the swing of the pump, upon which the child was injured, was not inherently dangerous.

The remaining questions raised on this appeal concern various rulings made in regard to the evidence introduced at trial. Defendant first contends that it was error to allow Charles Baggett, plaintiff’s brother, a twenty-five-year-old ironworker, to testify as an expert concerning the mechanical functions of oil well pumps and the chemical composition of crude oil. Counsel maintains that the court abused its discretion in allowing “this unqualified witness” to give expert opinions, and specifically sets forth verbatim answers of the witness which are, as follows:

A. This counterweight turns over these legs or poles that come down from this part, makes a complete arch, raises in back of the pump to let the head of it come down, as you can see the object going in the well itself to bring out the oil, and it comes out through a pipe from there down to the base of it and it runs down to the storage tanks.
A. Yes sir. The sucker or stem goes down to bring the oil out of the ground and makes the thing go as you can see, right on the head of the pump, and also the motor, the gasoline motor has a noise.
A. Well, the oil that stands for a while the gas evaporates from the oil and it isn’t as explosive or flammable.

We have carefully examined the record and conclude that this witness was not expressing an opinion as an expert witness, but rather was properly testifying to facts which he had observed through the years and were part of his own personal experience. See In re Estate of Pohn, 67 Ill App2d 227, 214 NE2d 553. The first two answers quoted by defendant were made in response to questions concerning photographs of the well and pump located on the Baggett premises; and the third answer was similarly made in response to a question concerning the aforementioned well and pump. The witness was clearly testifying concerning facts he had long been familiar with through his everyday experience. Moreover, his testimony was substantially corroborated by plaintiff’s expert witness. We fail to see how the defendant was prejudiced by this testimony. The defendant cites the cases of People v. Fiorita, 339 Ill 78, 170 NE 690, and People v. Green, 28 Ill2d 286, 192 NE2d 398, in support of his position. We find these criminal cases, dealing with the subject of the necessary qualifications of an expert witness, distinguishable in that we have concluded that the witness in the instant case was not expressing an opinion as an expert.

The defendant next contends that error was committed in admitting six photographs portraying other oil wells and pumps which had been fenced. On direct examination, Charles Baggett testified as to the occurrence in which plaintiff’s father asked an employee of defendant to put up a fence. He further testified that he had lived in and around the community for many years prior to the date of the accident, and that during that time he had seen wells similar to the one on the Baggett premises which, unlike defendant’s pump, had been completely fenced. Photographs were then submitted to Charles Baggett which portrayed various pumps and wells which were fenced. The witness testified that the pumps in the photographs were similar to the one involved in the instant case, and that he had seen that “type” of well in the surrounding community. Counsel for defendant objected on the grounds that isolated instances did not establish practice and custom in a trade. The court received the photographs into evidence over objection.

Defendant cites the cases of Brownlie v. Brownlie, 357 Ill 117, 191 NE 268, Kooyumjian v. Stevens, 10 Ill App2d 378, 135 NE2d 146, Brennan v. Leshyn, 51 Ill App2d 132, 201 NE2d 167 and Schoolfield v. Witkowski, 54 Ill App2d Ill, 203 NE2d 460, in support of its assertion that: “It is fundamental that in order to have a photograph admitted into evidence it is necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue and verified by such witness on personal knowledge as a correct representation of the facts.” We agree with defendant’s statement of the law in regard to the admission of photographs into evidence. However, we cannot agree with its conclusion that the principles of law, previously enunciated, when applied to the facts of the case at bar, establish the proposition that the admission of the photographs into evidence was error.

The witness testified to the fact that he had seen certain wells in the area surrounding his home which were fenced. The lack of fencing about defendant’s pump and the existence of fencing on similar pumps located in neighboring communities was certainly relevant to the issue of the defendant’s exercise of due care, or lack thereof. Furthermore, the witness testified that the photographs were a correct representation of the fact he testified to; i. e., that certain pumps in neighboring communities had been fenced. The defendant did not object to the oral testimony of Charles Baggett, and we conclude that the photographs merely explained the witness’ oral testimony concerning other wells he had seen that were fenced, and enabled the jury to apply the testimony more intelligently to the facts shown. Department of Public Works v. Chicago Title & Trust Co., 408 Ill 41, 95 NE2d 903. The trial judge did not abuse his discretion in allowing the photographs into evidence.

The defendant next contends that it was error to admit testimony of plaintiff’s witnesses concerning the fact that children played on and about the pump and turned on the gate valve, allowing the crude oil to run out of the pump. Defendant argues that this testimony was irrelevant and immaterial. We cannot agree. The testimony was relevant and material to the issue of defendant’s knowledge, through its agents, of the fact that children were playing about its pump and were also coming in contact with an inherently dangerous substance within its control. The case cited by defendant in support of its contention, Waugh v. Cander, 29 Ill App2d 408, 173 NE2d 860 is distinguishable. There in a wrongful death action the defendant’s wife who was riding in defendant’s car was rendered unconscious and did not regain consciousness until later in the hospital. She was improperly permitted over objection to detail her injuries although plaintiff’s counsel offered to stipulate that her loss of memory was genuine and caused by the collision. We fail to see how this case is helpful to defendant.

Error is also assigned to the admission of certain photographs taken of plaintiff’s body one month and six months after the occurrence. The defendant urges that these exhibits were inflammatory, had the natural effect of evoking sympathy, and were merely cumulative to medical testimony of plaintiff’s witnesses. The defendant cites Smith v. Ohio Oil Co., 10 Ill App2d 67, 134 NE2d 526. In Smith the court held that the use of a plastic model of a human skeleton as an aid in explaining the medical testimony of a physician was relevant, legitimate and helpful, and contained nothing emotional or dramatic in character. The court held that the question of relevancy of demonstrative evidence is primarily one to be resolved in the discretion of the trial judge, pointing out, however, that the admission of exhibits used only for dramatic effect or emotional appeal would constitute reversible error. In applying the standard of the Smith case, to the facts in the case at bar, we conclude that there was no abuse of discretion in permitting these photographs to be viewed by the jurors. We believe these exhibits were useful to the jury as an aid in comprehending the extent of plaintiff’s physical injuries.

Finally, defendant contends that the verdict of the jury was contrary to the manifest weight of the evidence and was the result of passion and sympathy. Defendant argues that there was no evidence introduced that it had breached any duty owed to plaintiff. We have already reviewed the evidence introduced at trial on the issue of defendant’s negligence and found it sufficient to overcome a motion for directed verdict or judgment n. o. v. We now conclude that the judgment of the jury was not against the manifest weight of the evidence, because an opposite conclusion on the issue of defendant’s negligence is not clearly evident, and disputed questions of fact were for the jury to resolve. Prowell v. Twin Mills Lumber Corp., 79 Ill App2d 401, 223 NE2d 749.

The defendant concedes that under the law of Kentucky, a child between seven and fourteen years of age is presumptively not chargeable with contributory negligence. Dixon v. Stringer, 277 Ky 347, 126 SW2d 448, however, he says the presumption is rebuttable. United Fuel Gas Co. v. Friend (Ky), 270 SW2d 946 (1954).

The defendant argues that the evidence indisputably rebuts the presumption that plaintiff was not guilty of contributory negligence. The law in Kentucky on this issue was set down in the case of Williamson v. Garland (Ky), 402 SW2d 80 (1966), where it was stated at page 82:

Henceforth, when an issue is presented respecting the contributory negligence of a minor plaintiff seven or more years of age, unless the contributory negligence (or lack of it) is established as a matter of law, the jury shall be instructed that the minor is charged with the duty to exercise care for his own safety, commensurate with that degree of care usually exercised by an ordinarily prudent minor of the same age, intelligence and experience of the plaintiff.

The question of the exercise of due care by the plaintiff, in the case at bar, was a factual one for the resolution of the jury under proper instructions. We have examined the instructions given and have concluded that the jury was properly charged on this issue.

We cannot say, after reviewing the evidence relating to plaintiff’s injury, that the amount of damages awarded were the result of passion, prejudice and sympathy. No useful purpose would be served here by detailing the injuries. Suffice it to say that the verdict of the jury is within the range of the testimony in the record.

For the reasons given, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

ADESKO and MURPHY, JJ., concur.