author: MR. JUSTICE ENGLISH

text:
    Ulysses Murphy, Plaintiff-Appellant, v. Police Board of the City of Chicago, and O. W. Wilson, Superintendent of Police of the City of Chicago, Defendants-Appellees.
    Gen. No. 50,457.
    First District, Fourth Division.
    April 10, 1968.

      Michael F. Ryan and Richard F. McPartlin, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Harry H. Pollack, Special Assistant Corporation Counsel, and Sydney R. Drebin and Irwin Cohen, Assistant Corporation Counsel, of counsel), for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This appeal is from a judgment of the Circuit Court under the Administrative Review Act, upholding the action of the Police Board of the City of Chicago in ordering the discharge of plaintiff from his position as a patrolman in the Police Department. Plaintiff raises the sole contention that the hearing which led to the Board’s discharge order was void for want of jurisdiction.

On June 6,1963, the Superintendent of Police filed with the Police Board certain charges against plaintiff alleging violations of the Rules and Regulations of the Chicago Police Department. Plaintiff was notified that a hearing on the charges would be held July 11, 1963. On that date a hearing was convened and, after the prosecution had presented all its witnesses, the matter was continued to September 12, 1963. On September 12, the defense witnesses were heard, and at the conclusion of that hearing the matter was taken under advisement until November 7, 1963, when a “Finding and Decision” was issued, reading in pertinent part:

“The Police Board of the City of Chicago, as a result of its investigation of the charges, finds and determines that:
“2. The charges were filed in writing, and a notice, stating the time and date when and the place where a hearing of the charges was to be held, together with a copy of the charges, was served upon the respondent more than five (5) days prior to the hearing on the charges.
“3. The hearing on the charges was completed before Theophilus M. Mann, a Member of the Police Board, on September 12, 1963.
“4. Throughout the hearing the Respondent did appear in person and was represented by legal counsel of his own choosing.
“By reason of the findings of fact and of guilt herein, cause exists for the discharge of the Respondent from his position as a patrolman and as a member of the Department of Police of the City of Chicago, therefore,
“It Is Hereby Ordered, that the Respondent Ulysses Murphy, be and is discharged, from his position as a patrolman in the Department of Police, and from the service of the City of Chicago,
“Dated at Chicago, County of Cook, State of Illinois, this 7th day of November, 1963.
/s/ Theophilus M. Mann Member of Trial Board
/s/ Paul W. Goodrich
/s/ Theophilus M. Mann
/s/ F. M. Kreml
/s/ William L. McFetridge
/ s/ Morgan F. Murphy Member of Police Board
/s/ K J. Hauser
Secretary of Police Board”

It is undisputed that on the hearing dates mentioned above, the only member of the Police Board who sat and heard the evidence was Theophilus M. Mann. Consistent with this fact, it may be noted that the “Finding and Decision” was signed by Mann as “Member of Trial Board” and also as one of the five Members of the Police Board.

No issue was raised as to the Board’s purported appointment of Mann as the “Trial Board,” and if there had been any technical defect in such appointment, it would have been cured by the actions taken by the Board on November 7, 1968. People v. Powell, 127 Ill App 614. However, plaintiff does contend that the statute empowering the Board to remove or suspend a police officer require that a hearing be conducted before the entire Board.

The empowering statute as it existed at the commencement of this provided, and the current statute still provides, that the Board shall:

“. . . 4. Serve as a board to hear disciplinary actions involving officers and civilian employees of the police department in the classified civil service of the city. . . .” Ill Rev Stats (1961), c 24, § 9-15.1; Ill Rev Stats (1963), c 24, § 3-7-3.1.

The procedure appropriate to this case is set out in ■ a different statute which was enacted in 1961 and amended in 1963. The pertinent parts are as follows (italics indicating the language added by the 1963 amendments) :

“Upon the filing of charges for which removal or discharge, or suspension of more than 30 days is recommended a hearing before the Police Board shall be held.
“The Police Board shall establish rules of procedure not inconsistent with the provisions of this section respecting notice of charges and the conduct of the hearings before the Police Board, or any member thereof appointed by the Police Board to hea/r the charges. The Police Board, or any member thereof, shall not be bound by formal or technical rules of evidence, however hearsay evidence shall be inadmissible. The person against whom charges have been filed shall have the right to appear before the Police Board, any member thereof, as the case may be, with counsel of his own choice and defend himself; shall have the right to be confronted by his accusers; shall have the right to cross-examine any witness giving evidence against him; and shall have the right by counsel to present witnesses and evidence in his own behalf.
“. . . The findings and decision of the Police Board, when approved by said Board, shall be certified to the superintendent and shall forthwith be enforced by said superintendent.
“The concurrence of a majority of the members of the Police Board shall be necessary for any disciplinary recommendation or action entered.” Ill Rev Stats (1963), c 24%, § 51.1.

Cartan v. Gregory, 329 Ill App 307, 68 NE2d 193, is authority for the proposition that, since there is no presumption of jurisdiction in favor of a statutory body, the record must show all the jurisdictional prerequisite facts and observance of the form of proceedings legally applicable, before a civil service commission may properly exercise its power to remove a civil service employee. The same general jurisdictional prerequisites exist with respect to the Police Board’s statutory power of removal. It therefore becomes necessary to decide whether or not a hearing held before a single member of the Police Board was a procedure authorized by statute, an affirmative conclusion being required if the Board’s order of discharge is to be upheld.

There are numerous authorities holding that a hearing conducted before a single board member, or fewer than all of the board members, or fewer than the number required to take the action in question, does not violate due process. E. g., Des Plaines Currency Exchange, Inc. v. Knight, 29 Ill2d 244, 194 NE2d 89; Cooper v. State Board of Medical Examiners of Department of Professional and Vocational Standards of California, 35 Cal2d 242, 217 P2d 630, 632 (1950); City of Derby v. Water Resources Commission, 148 Conn 584, 172 A2d 907 (1961); Taub v. Pirnie, 3 NY2d 188, 165 NYS2d 1; 42 Am Jur 484, 485. See also Morgan v. United States, 298 US 468, which held constitutionally unobjectionable the delegation to an Assistant Secretary of Agriculture of the Secretary’s authority to conduct a hearing pursuant to federal statute.

But plaintiff does not assign a constitutional infirmity to the Board’s decision in the case before us. He argues simply that it was jurisdictionally void because of failure to comply with the statute, thus reducing the question to one of statutory construction.

We have not been referred to any Illinois case in point. In addition to an impressive argument based on the language of the statute itself, plaintiff relies principally upon Perkins v. School Committee of Quincy, 315 Mass 47, 51 NE2d 978 (1943); Sesnovich v. Board of Appeal of Boston, 313 Mass 393, 47 NE2d 943 (1943); Hawkins v. Common Council of City of Grand Rapids, 192 Mich 276, 158 NW 953 (1917); and McAlpine v. Garfield Water Commission, 135 NJL 497, 52 A2d 759 (1947). The persuasive weight of decisions from these courts cannot be denied, but there is a weakness implicit in any non-Illinois opinions construing statutory provisions which are different from ours. Further, the language of McAlpine concerning “fair and impartial trial” bears so close a relationship to due process that there seems to exist at least a possibility of conflict with Morgan, supra. Thus, we are returned for resolution of the question before us to a close reading of the Illinois statute to the best of our ability.

The legislative history is informative. The section of the Civil Service Act relating to discharge of an employee, as adopted in 1895, provided for investigation of charges “by or before said civil service commission, or by or before some officer or board appointed by said commission.” Ill Rev Stats (1959), c 24%, § 51. Continuing, “The finding and decision of such commission or investigating officer or board, when approved by said commission, shall be certified to the appointing officer, and shall be forthwith enforced by such officer.”

This section remained intact and governed the discharge of policemen until 1961 when there was, as it were, a “spin-off” and the Police Board was established by a new statute, the pertinent parts of which have been quoted above. As we have mentioned, this statute did not include any specific language prescribing the person or persons authorized to conduct hearings, but merely called for a hearing “before the Police Board.” It did, however, go on to provide that the Board should establish its own rules of procedure for the conduct of such hearings. And at the very next session of the legislature in 1963, the section was amended to make specific reference to hearings before the Board “or any member thereof appointed by the Police Board to hear the charges.” Plaintiff concedes that the 1963 amendments were sufficient to authorize the type of “one-member” hearings conducted in the instant case, but contends that such authority did not exist without the amendment, which came too late to validate the initial hearing in this case.

First, it seems to us reasonable that the legislature intended that the Police Board have the authority to designate a hearing officer even without the 1963 amendments. This was the basic legislative scheme or pattern throughout the history of civil service in Illinois since 1895. There was a brief period commencing in 1961, when the Police Board was established, during which specific words to this effect were omitted from the applicable statute, but it is just as reasonable to assume that this was done through imprecise draftsmanship as it is to decide, as plaintiff urges, that this represented a radical departure from the general legislative intent. And it is much more sensible to conclude that a continuation of the pattern had been intended when we bear in mind the practical aspects of the situation. It is almost inconceivable that all members of the Police Board — leading citizens of the community, extremely busy men involved with their own and their employers’ business affairs, contributing their time, experience and judgment to the Police Board as a public service without compensation— could find it possible to accomplish unanimous attendance at all of the hearings called for by the statute. It is even less reasonable to conclude that the legislature intended to authorize hearings before a single member of the Board in cities with a population under 500,000, while requiring hearings before the full Board in Chicago where the size of the police force and the crush of business are so much greater. It was never required before, and it has not been required since, as the legislature seized the first opportunity to make a more express statement of its intention through the 1963 amendments, thus eliminating, in our view, whatever ambiguity might have existed under the 1961 statutory changes. We believe the 1963 amendments to have been enacted for the purpose of clarification rather than change.

That this is the proper reading of the legislative intent is bolstered, we believe, by the particular language of the statute itself to which, as quoted above, we again make reference. The 1963 insertions of words relating to one-member hearings are found only in the paragraph which deals with the Board’s authority to establish its own rules of procedure. No similar amendment was made in the immediately preceding paragraph which still provides that “a hearing before the Police Board shall be held.” Thus, the basic direction for the holding of a hearing remains unaffected by the amendments to the following paragraph, indicating that the authority to conduct one-member hearings (which plaintiff concedes were authorized in 1963) existed all along, but had simply not been spelled out for the short interim period during which this proceeding was commenced.

It will be noted also that the old language of the Civil Service Act provides that the “finding and decision” of the hearing officer shall be certified and enforced “when approved by said [civil service] commission.” In the 1961 section relating to the Police Board, there is a similar clause to the effect that the “findings and decision” of the Police Board, “when approved by said Board,” shall be certified and enforced. If a finding and decision could be made only by the full Board, then, of course, the requirement for approval by the Board prior to enforcement would be a superfluous and meaningless provision. The clause requiring approval by the Board, however, takes on the same meaning it had all through the years in regard to civil service hearings, if it is recognized that the investigatory hearings on the charges need not have been attended by all members of the Board.

Another avenue which leads to the same conclusion is through determination of whether the 1963 amendments were substantive and therefore to be applied prospectively only, or procedural and, in consequence, to be given retroactive application. Full discussion of this subject is to be found in Orlicki v. McCarthy, 4 Ill2d 342, 344-354, 122 NE2d 513. A statute relating to statutory construction— the so-called “Saving Statute” — also bears on this subject, directing that no new law shall be construed to affect any right accrued under the former law save only as to matters of procedure. Ill Rev Stats (1963), c 131, § 4. This statute, however, has consistently been held to protect only “vested rights,” although, as stated in the Orlicki opinion at page 347, “the concept of ‘vested rights’ is fraught with vagaries that defy precise definition.” Continuing, the court said:

“[The courts] have held that where the change in law merely affects the remedy, or the law of procedure, all rights of action will be enforcible under the new procedure without regard to whether they accrued before or after such change of law, and without regard to whether suit has been instituted or not, unless there is a saving clause as to existing legislation [litigation?]. Board of Education v. City of Chicago, 402 Ill 291; Smolen v. Industrial Com. 324 Ill 32; McQueen v. Connor, 385 Ill 455; Weil-McLain Co. v. Collins, 395 Ill 503; Ogdon v. Gianakos, 415 Ill 491.
“The term ‘procedure,’ however, has been invested with a meaning much wider than that of pleading or practice, and no simple formula can be evolved as to when an amendment relates to a procedural, or to a substantive right.”

The holding of the court was that the time limit within which a dramshop action might be brought, having been shortened by a statutory amendment, should be retroactively applied to bar plaintiff’s action (which had been timely under the law as it existed when the cause of action arose), on the ground that the legislature had so intended, and on the ground that the amendment was procedural in character. See also Dworak for Use of Allstate Ins. Co. v. Tempel, 17 Ill2d 181, 187-188, 161 NE2d 258; In re Dance’s Estates, 16 Ill App2d 122, 126-130,147 NE2d 385.

Plaintiff argues not only that the 1963 amendments brought about a change in the law but also that it was one of substance rather than procedure. We think not. The critical part of the critical sentence, with the amendment addition in italics, reads:

“The Police Board shall establish rules of procedure . . . respecting . . . the conduct of hearings before the Police Board, or any member thereof appointed by the Police Board to hear the charges.”

Having in mind all of what we have said above in this opinion, we believe that the amendment was procedural rather than substantive.

The section as amended should therefore be applied retroactively to this case (which was commenced before the amendment but was concluded thereafter). In so doing, plaintiff says that it could be considered as authorizing the one-member hearing which was held in September but not the one which was held in July. We think that a more sensible retroactive application would be to extend the amended law to both hearings, since compliance with plaintiff’s theory would simply have required a rehearing by the same Board member of the same witnesses with the same result, a procedure which we consider somewhat ridiculous under all the circumstances.

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.

       In 1961 section 51 of the Civil Service Act (c 24%) was amended and was also substantially reenacted as section 10-1-18 of chapter 24, and both became applicable only to municipalities under 500,000. Section 51.1 was added to chapter 24% and was amended in 1963. The substance of both sections is currently to be found in sections 10-1-18 and 10-1-18.1 of chapter 24.


source: Caselaw Access Project

license: Public Domain

text:
    Ezra De Jarnett, Plaintiff-Appellee, v. William Roseborough, Defendant-Appellant.
    Gen. No. 50,664.
    First District, Fourth Division.
    April 10, 1968.

      Asher, Greenfield, Gubbins and Segall, of Chicago (Irving M. Greenfield and Irving D. Levin, of counsel), for appellant.
    James E. Land, of Lansing, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant appeals from vacatur of an order dismissing plaintiff’s cause of action for want of prosecution.

This action arose as a result of an automobile collision. Plaintiff sued for damages to his vehicle in the sum of $734.67. Defendant filed his answer and the cause was set for trial on November 16, 1964. Subsequently, the court entered orders “by agreement of the parties” continuing the case for trial until November 30, 1964, and to January 11, 1965. After another continuance by agreement to January 25, 1965, the court, on that date, entered an order dismissing the cause for want of prosecution.

On April 26, 1965, a verified petition on the oath of the attorney for plaintiff was filed, asserting:

That plaintiff was prepared to proceed at trial on January 11th and had in fact arranged for his client and the witness to come to Blue Island from Tamms, Illinois, which is a considerable distance. That on Friday, January 8th, plaintiff’s attorney received a telephone call from defendant’s attorney advising that he had a criminal matter scheduled for January 11th and could not proceed to trial, and requested plaintiff’s counsel to again continue the matter. Defendant’s counsel further stated that he was certain he could compromise the matter pursuant to the demands submitted to him by plaintiff at that time, and that plaintiff’s counsel relying upon the offer of compromise agreed to forego insistence upon proceeding to trial. The plaintiff’s counsel was in fact unable to call his clients in Tamms, Illinois because they had already left for Blue Island on Saturday, January 9th, and the plaintiff did in fact appear in court at the time of trial, being January 11th, and that they telephoned Petitioner who advised them of settlement in that the case should be allowed to be dismissed for want of prosecution. That subsequent to the above action, the defendant has advised plaintiff’s counsel that he cannot now settle the matter, whereupon plaintiff moves the cause be set down for a day certain for trial.

Defendant’s lawyer filed a verified answer in opposition to the motion and in reply to the petition. On May 10, 1965, the court, “being advised in the premises,” vacated the dismissal order and reset the case for trial. Defendant appeals from the order of May 10 reinstating the case.

Relief from final orders after thirty days from their entry may be had upon petition, as provided in section 72 of the Illinois Civil Practice Act. Ill Rev Stats (1963), c 110, §72(1). Therefore, though not denominated as such, plaintiff’s petition will be treated as seeking relief under this section. While such a petition is filed in the same proceeding, it is in essence a new action subject to the usual rules governing civil cases.

A section 72 petition is subject to a motion to dismiss if it fails to show on its face that petitioner is entitled to the relief sought. Brockmeyer v. Duncan, 18 Ill2d 502, 505,165 NE2d 294; First Nat. Bank & Trust Co. v. Desaro, 43 Ill App2d 153, 155, 193 NE2d 113. Generally, where the opposing party elects not to file a motion to dismiss and, instead, answers on the merits, he will be deemed, on review, to have waived his opportunity to attack the sufficiency of the petition. Selvaggio v. Kickert School Bus Line, Inc., 46 Ill App2d 398, 405-406, 197 NE2d 128; Maierhofer v. Gerhardt, 29 Ill App2d 45, 48, 172 NE2d 201. However, as in any civil action, if there is a total failure to state a cause of action or, as in this case, a basis for statutory relief, then there exists no pleading upon which to sustain a judgment or order, and the primary pleading may be challenged at any time. Grizzard v. Matthew Chevrolet, 39 Ill App2d 9,16-17, 188 NE2d 59.

Section 72 does not afford a procedure whereby a party is relieved of the consequences of his own mistake or negligence. Piper v. Reder, 70 Ill App2d 141, 144, 217 NE2d 487; Gundersen v. Rainbow Cleaners & Laundry, 77 Ill App2d 268, 272, 222 NE2d 41. Rather, section 72 authorizes the court to exercise its equity powers to grant relief where necessary to prevent injustice. Elfman v. Evanston Bus Co., 27 Ill2d 609, 613, 190 NE2d 348. If, under the circumstances of the case, “substantial justice” dictates that the judgment be set aside, then it would appear under Elfman that the court has the power to take such action. However, if the petition is to comply with the requirements of section 72, it must, at the very least, demonstrate to the court why it would be unjust to allow the questioned order to stand.

In the instant case, petitioner represents as the basis for relief that as a result of a phone conversation with defendant’s attorney on January 8, petitioner instructed his client, the plaintiff, who was present in court on January 11, to allow the case to be dismissed for want of prosecution. However, the record reveals that the case was not dismissed on January 11 but was continued by agreement of the parties until January 25. Petitioner does not aver that he had no knowledge of this continuance. The petition is also silent as to how much time elapsed after the dismissal before petitioner was advised that defendant would not settle the case. Nor is there any averment that petitioner was diligent in pursuing the settlement negotiations or diligent in pursuing his other remedies when the settlement negotiations failed. No facts are alleged to excuse absence from court on January 25 to prosecute or continue the case, or to show when petitioner learned of the dismissal. While petitioner asserts that he had foregone proceeding to trial on January 11 in reliance on the January 8 phone call, he makes no representation to the court that he relied on this “agreement” in allowing the case to be dismissed on January 25.

Petitioner swore that during the phone conversation “[D] efendant’s counsel further stated that he was certain he could compromise the matter pursuant to demands submitted to him by plaintiff at that time.” There is no allegation that defendant’s attorney expressed a present intent to compromise the claim for a definite amount at that time so as to form a contract of settlement. The word “could” connotes supposition, desire, hypothesis or possibility, rather than a state of present fact. Further, no attorney would be justified in relying on such a representation to create an estoppel.

In summary, the petition fails to assert facts sufficient: (1) to support the legal conclusion that a contract of settlement between the parties was entered into on January 8; (2) to insulate the plaintiff from the consequences of his conduct by virtue of the doctrine of promissory estoppel; (3) to excuse the failure of plaintiff or his representative to appear before the court on January 25; or (4) to indicate that plaintiff was diligent in pursuing his rights thereafter. We are therefore unable to find in the petition any basis in fairness or justice for granting the relief sought. It does not, in our opinion, furnish foundation for the court’s order vacating the dismissal. Grizzard v. Matthew Chevrolet, supra. Accordingly, the Circuit Court’s order of dismissal is reversed.

Reversed.

MCCORMICK, P. J. and DRUCKER, J., concur.


author: GOLDENHERSH, J.

text:
    William D. Gillson, as Administrator of the Estate of Bonnie Delores Gillson, Deceased, Plaintiff-Appellee, v. Gulf, Mobile and Ohio Railroad Company, a Corporation, Defendant-Appellant, Edwin S. Parker, Thomas Butler, and Village of Hartford, Illinois, a Municipality, Defendants.
    Gen. No. 67-76.
    Fifth District.
    April 12, 1968.
    Rehearing denied May 6, 1968.

      Gillespie, Burke & Gillespie, of Springfield, and John W. Hoefert, of Alton, for appellant.
    Hoagland, Maucker, Bernard & Almeter, of Alton (James K. Almeter, of counsel), for appellee.
   GOLDENHERSH, J.

Gulf, Mobile and Ohio Railroad Company, hereafter referred to as defendant, appeals from the judgment of the Circuit Court of Madison County entered on a jury verdict in the amount of $28,000 for the wrongful death of Bonnie Delores Gillson, 17-year-old daughter of the plaintiff administrator.

The decedent was killed in a collision between an automobile in which she was riding as a passenger, and defendant’s train known as the Abraham Lincoln. The collision occurred at approximately 9:30 p. m. on January 21, 1965, at the Rand Avenue Crossing in Hartford, Illinois.

In its verdict the jury found the issues for the plaintiff and against the defendant, Gulf, Mobile and Ohio Railroad Company, and in favor of the defendants, The Village of Hartford, Edwin S. Parker and Thomas Butler, respectively engineer and fireman on the locomotive involved in the collision.

Defendant contends, as its first ground for reversal, that the court erred in permitting plaintiff’s counsel in opening statement, over repeated objections, to refer to, discuss, and read from certain documents, which when offered in evidence, were held to be inadmissible. Defendant argues that plaintiff’s counsel knew the documents to be inadmissible, and the references to them were made in bad faith for the purpose of presenting to the jury matters prejudicial to defendant. Defendant contends that counsel’s misconduct deprived it of a fair trial, and the trial court’s rulings on its objections, motion for mistrial, and post-trial motion were erroneous.

Plaintiff argues that the documents were admissible, the trial court erred in excluding them; assuming arguendo, that the trial court correctly held them to be inadmissible, defendant was not prejudiced by what occurred during the opening statement, and the trial court, in denying defendant a new trial, did not abuse its discretion.

The documents in question were excerpts of minutes of meetings of the village board of the defendant, Village of Hartford, held on September 1, 1931, February 7, 1933, and January 28, 1965, a letter dated July 13, 1937, written by the Superintendent of Streets and Alleys of the defendant, Village of Hartford, to the defendant, and a letter dated July 21, 1950, written by an employee of defendant to his superior.

Plaintiff contends that the excerpts from the minutes of the village board and the letter written by its Superintendent of Streets and Alleys are admissions of the defendant Village, and therefore, admissible. As to the letter written by defendant’s employee, plaintiff argues that it constitutes an admission on the part of defendant, and further, contains admissions made by the defendant Village.

An examination of the latter document shows that it contains no admissions against interest by either defendant, and the court correctly held it to be inadmissible.

With respect to the remaining documents we need not decide whether they contain admissions of the defendant Village, for the reason that if, as contended by plaintiff, they are admissions, they are not relevant to any issue in this case.

It is plaintiff’s theory that the documents contain admissions on the part of the defendant Village that the crossing is an extrahazardous one, and show that the village recognized the necessity for the installation of flashing warning lights, or providing a watchman at the crossing.

To be admissible, admissions against interest, like other evidence, must be relevant to the issues. Malt-by v. Chicago Great Western Ry. Co., 347 Ill App 441, 106 NE2d 879. Chapter 111%, § 62, Ill Rev Stats, confers upon the Illinois Commerce Commission the exclusive authority to order that flashing warning lights be installed, or that a watchman be provided, at crossings, City of Altamont v. Baltimore & O. R. Co., 348 Ill 339, 180 NE 809. Assuming that the defendant Village recognized and admitted the crossing to be extrahazardous, no liability can stem from its failure to instal flashing signals or provide a watchman. Resnik v. Michaels, 52 Ill App2d 107, 201 NE2d 769. Since the statements, even if admitted and not controverted, would not impose liability upon the defendant Village, they were not relevant to the issue of liability, and the trial court correctly excluded them.

We consider next defendant’s argument that counsel’s comments during opening statement were so prejudicial as to effectively deprive it of a fair trial. With respect to defendant’s contention that plaintiff’s counsel acted in bad faith, this court, in reaching its decision that the documentary evidence was properly excluded, examined the many authorities cited in the briefs and a number of cases found in its own research, and concludes that the issue is not so easily determined as defendant contends. Upon our review of the record we are not prepared to say that counsel acted in bad faith.

Defendant’s contentions with respect to the prejudicial effect of counsel’s comments, and its charge of error in the denial of a new trial, must be reviewed in the same manner as are alleged errors in rulings on arguments of counsel. In Wells v. Gulf, Mo. & O. R. Co., 82 Ill App2d at page 80, 226 NE2d 662, this court said at page 34: “The rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him. North Chicago St. R. Co. v. Cotton, 140 Ill 486, 29 NE 899. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill 322, 163 NE 17.”

The record shows that the court gave an instruction in the language of IPI 1.01, and that plaintiff’s counsel, in the opening statement stated that the jury were not to consider his remarks as evidence, and should disregard any statement not supported by the evidence. Upon examining the record in the light of the above stated rule, we find that the trial court did not abuse its discretion in denying defendant’s motions for a mistrial and new trial.

The evidence shows that the automobile in which plaintiff’s decedent was a passenger, was being driven in a westerly direction on Rand Avenue. Rand Avenue is intersected by three tracks. The most easterly track is a spur which runs in a northerly and southerly direction, and serves the premises of a tannery which was not in operation at the time of the occurrence. Approximately 350 feet west of and parallel to the spur track, is the track of the New York Central Railroad. Defendant’s track is approximately 60 feet west of and parallel to, the New York Central Track. The Abraham Lincoln was being operated on defendant’s track in a southerly direction by defendant, Edwin S. Parker, the engineer, and riding in the cab at that time was the defendant, Thomas Butler, defendant’s fireman.

At the close of plaintiff’s case defendant tendered Thomas Butler as an eyewitness. It contends the record shows him to be an eyewitness to the occurrence, that the testimony with respect to decedent’s careful habits should have been stricken, and the record contains no admissible evidence of the due care of plaintiff’s decedent.

In the course of defendant’s case, Butler was twice called as its witness. In an offer of proof made by interrogation of Butler out of the presence of the jury, the witness testified that he had seen the automobile in which plaintiff’s decedent was riding when it was 400 feet east of the crossing and again when it crossed the New York Central tracks. He stated that at that point, the automobile was traveling 40 miles per hour, and he continued to observe it up to the time of impact.

Plaintiff, citing Turnbull v. Porter, 55 Ill App2d 374, 206 NE2d 97, contends that the testimony shows the movement of the automobile but not the actions of the occupants, that negligence of the driver, if any, is not imputable to the decedent, and the court did not err in its ruling. We have examined Wuebbles v. Shea, 294 Ill App 157, 13 NE2d 646, and Hawthorne v. New York Cent. R. Co., 2 Ill App2d 338, 119 NE2d 516, cited by defendant, and find them distinguishable in that the decedent in each instance was the driver of the automobile, and conclude that there was no error in the court’s rulings.

Defendant contends that the trial court erred in refusing to allow Butler to testify concerning matters testified to by the defendant, Parker, on the ground that he was incompetent under the provisions of section 2 of the Evidence Act (c 51, § 2, Ill Rev Stats 1965).

Defendant’s claim of error is based on two grounds, the first being that there is no evidence of negligence on the part of Butler, and the court should have directed a verdict for him at the close of plaintiff’s case, thus terminating any incompetence by virtue of the Evidence Act.

Defendant, Parker, when called by plaintiff under section 60 of the Civil Practice Act (c 110, Ill Rev Stats), testified that the defendant, Butler, was seated on the left or east side of the cab, it was his duty to watch the crossings and warn him of hazards, and that no warning was given. Defendant argues that Parker’s testimony shows that the train’s whistle, horn and bell were turned on as the engine reached the whistle post, a quarter-mile north of the crossing, and his testimony as to the distance required to stop the train clearly establishes that had Butler seen the automobile at any point within the quarter-mile from the whistle post to the crossing, the train could not have been stopped in time to avoid the collision. Parker testified that had Butler called out a warning he could not have heard it because of the noise of the whistle, horn and bell. Defendant contends that the evidence demonstrates that Butler’s alleged failure to keep a lookout or call out a warning could not be the proximate cause of the collision.

Defendant cites Hawthorne v. New York Cent. R. Co., 2 Ill App2d 338, 119 NE2d 516; Shaw v. Chicago & E. I. R. Co., 332 Ill App 285, 75 NE2d 51, and Bossert v. Wabash Railroad, 338 Ill App 488, 87 NE2d 859, in support of its argument that the trial court erred in refusing to direct a verdict for Butler. In Hawthorne the opinion does not set forth the evidence against the defendant fireman, Williams. In Shaw the evidence showed that the fireman, immediately prior to the collision, was stoking the fire, and the case is further distinguishable in that the fireman was not named a party defendant, and unlike the defendant, Butler, was not specifically charged with failure to keep a proper lookout. In Bossert, the testimony shows that the engineer and fireman were both looking out of the windows of the cab of the engine, both saw the plaintiff’s tractor shortly after passing the whistle post, and the train could not be stopped in time to avoid the collision.

Whether the trial court erred in refusing to direct a verdict for Butler must be determined upon the standard set in Pedrick v. Peoria & Eastern R. Co., 37 Ill 2d 494, 229 NE2d 504. Applying the rule of Pedrick we hold that the trial court correctly refused to direct a verdict for defendant, Butler.

Defendant contends that because of plaintiff’s interrogation of Parker under section 60 of the Civil Practice Act, Butler was rendered competent to testify as to the occurrence matters to which Parker testified. Defendant argues that plaintiff, by his interrogation of Parker waived the bar of the Evidence Act, and further, that Butler should have been allowed to rebut Parker’s testimony concerning Butler’s conduct before the occurrence. We have searched the record and find that in Butler’s testimony the only question to which an objection was sustained on the basis of the Evidence Act was whether the whistle was on immediately following the collision. We fail to see in what manner defendant was prejudiced by that ruling, and the error, if any, was harmless.

We have examined defendant’s offer of proof made by interrogation of Butler outside the presence of the jury. The record clearly reflects that the offer of proof was made for the limited purpose of showing that Butler was an eyewitness. We find no offer of the evidence for any other purpose, nor any ruling by the court on any such offer of proof. In the absence of a ruling by the trial court, there is no basis for review of the alleged error.

For the reasons set forth the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    Shirley Beccue, Plaintiff-Appellant, v. Rockford Park District, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 67-125.
    Second District.
    April 16, 1968.

      Lawrence J. Ferolie, of Rockford, for appellant.
    Maynard, Maynard and Brassfield, of Rockford, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Shirley Beccue, brought this action against the defendant, Rockford Park District, for personal injuries suffered while tobogganing at a park owned by the defendant. In her complaint, she charged the defendant with negligence in Count I, and with wilful and wanton conduct in Count II.

The jury answered separate special verdicts, finding that the plaintiff was free from any negligence or wilful or wanton conduct proximately contributing to her injuries, and also, that the defendant was free from any negligence or wilful and wanton misconduct as charged against it. The jury rendered a general verdict for the defendant on which judgment was entered, and the plaintiff has appealed to this court.

The plaintiff here contends: that the defendant was negligent as a matter of law; that the answers to certain special interrogatories and the verdict are contrary to the manifest weight of the evidence; that certain admissions made by the defendant in its pleading were improperly excluded from the evidence, as were admissions by an employee of the defendant; that specific photographs offered in evidence by the plaintiff were also improperly excluded; that the trial court erred in instructing the jury; and that the form of verdict submitted by the court was improper.

At the time of the occurrence — December 5, 1964— the plaintiff, then twenty-one years of age, was a student at Northern Illinois University. She, along with approximately thirty students from the university, located at DeKalb, arrived at Atwood Park in Rockford, at approximately 1:00 p. m. — shortly after a moderate snowfall— for the purpose of tobogganing. They had two toboggans.

Some of the group commenced to toboggan down a run or a hill. Others, including the plaintiff, first had lunch. Apparently no one, other than this group, was using this hill at the time. After lunch, the plaintiff, along with some others, went to join the group of fifteen to twenty persons who were then tobogganing. The plaintiff’s first run on the toboggan was at about 2:30 p. m.; it was uneventful. After her first run, the plaintiff took her turn in line to go back up the hill. The line passed the toboggans up from the bottom to the top of the hill. As persons got on the toboggan, the rest of the line then moved part way up the hill. Under this procedure, it took approximately thirty minutes to get back up to the top of the hill.

When the plaintiff reached the top of the hill, at approximately 3:00 p. m., she, and three boys, got on the toboggan for her second ride. She was the second person from the front. When the toboggan had proceeded approximately one-third of the way down the hill, the two boys behind and the one in front of the plaintiff, fell off it and the toboggan continued down the hill with only the plaintiff on it. It then veered to the right and struck a tree. The plaintiff, as a result, suffered very-severe injuries.

At the time the boys fell off the toboggan, it apparently was going straight down the run and had not struck any bump, hole or depression. No explanation or reason was given for their fall. The members of this group had been tobogganing continually from the time they arrived at the park. There had been no incidents or accidents prior to the unfortunate one in question.

The park was open to the public on this date, as was the area in question, and apparently there were no signs either prohibiting tobogganing in the area or advising of any danger in connection therewith. A park district maintenance man was plowing snow off the roadways in the area: he did not say anything to any of the group.

The particular area or run used by the group had previously been a toboggan slide. The defendant had constructed a wooden toboggan slide at this point in the fall of 1961. The site was selected because of the pitch of the hill. The hill was wooded and the defendant cleared and leveled a straight run thereon, approximately 10 to 12 feet in width for the slide. The wooden slide was about 225 feet in length and there was a roadway approximately 175 feet from the bottom of the slide. This had to be leveled to permit the toboggans to pass safely over it. A river was about 450 feet from the bottom of the slide. And, at the bottom of the hill a curve was built up to turn the toboggans to the right and to prevent them from going into the river.

The wooden slide was removed by the defendant in September of 1964. Several reasons were given: it was difficult to keep snow on it because of its southern exposure ; it was too expensive to man with sufficient help; the majority of users were from out of the park district; and it was unsafe in that the curve at the bottom was too abrupt. Also, there was apparently some danger of toboggans going over the banked curve and into the river.

The testimony, as well as the pleadings of the defendant, established that there had been a sign, or signs, stating, “Toboggan Slide Closed,” “Danger — No Sliding.” These signs were placed in the area after the wooden slide was closed to the public, but before it was dismantled. The signs remained after the wooden slide was removed, but it is undisputed that no such signs were at the area on the date in question, and no employee of the defendant warned, advised against, or prohibited the tobogganing. The evidence established that at least the maintenance employee who was plowing snow from the road saw the group tobogganing at the area in question and made no protest.

The plaintiff testified that she had tobogganed at Atwood Park the previous year. She did not then use the wooden slide but tobogganed where there was a path through another tree-covered area. She did not know that there had been a wooden toboggan slide at the site.

The plaintiff first argues that the defendant was guilty of negligence as a matter of law in permitting the path cut through the trees to remain in such condition — after the slide was removed — that it could be used for tobogganing; in not having the area posted on the date in question with signs warning of the danger or prohibiting the use of the hill; and in the failure of the defendant’s employees to warn her of the danger or prohibit her from using the hill.

In maintaining its recreational facilities for use by the public, the body politic in the aggregate benefits from its use as does the individual user. There is a common or mutual benefit derived from the use of public recreational facilities which justifies the creation, maintenance and expenditure of public funds for such facilities. It is this common benefit which results in the individual user being an invitee to whom there is owed by the public entity the duty customarily owed to invitees, at least so long as the latter does not go beyond the bounds of his invitation. DuMond v. City of Mattoon, 60 Ill App 2d 83, 86, 87, 207 NE2d 320 (1965).

The plaintiff clearly was an invitee at the time of her injury. The gate to the particular area was open, inviting the use of this area by the public, including the plaintiff. Even though signs may have been posted at another time, there were then no signs prohibiting the use of this area for tobogganing; there was no protest by the defendant’s employee who saw the area used for tobogganing, and for all intents and purposes, the area was open for, and invited the use for, tobogganing.

As an invitee, the defendant owed the plaintiff the duty of exercising reasonable care for her safety. Driscoll v. Rasmussen Corp., 35 Ill2d 74, 77, 219 NE2d 483 (1966); Geraghty v. Burr Oak Lanes, Inc., 5 Ill2d 153, 157, 125 NE2d 47 (1955). If there are hidden dangers upon the premises, the owner must use ordinary care to give warning thereof. Geraghty v. Burr Oak Lanes, Inc., supra, 158. An owner or occupier of premises, because of the superior knowledge he is expected to have relative thereto, is held to a higher standard of knowledge, presumed or actual, of defects in the premises than is an invitee. Thus, the duty to remedy or warn an invitee of defects in the premises extends not only to known defects, but also to those of which the owner could have known had he used reasonable care. Blue v. St. Clair Country Club, 7 Ill2d 359, 363, 131 NE2d 31 (1956); Bogovich v. Schermer, 16 Ill App2d 197, 200, 147 NE2d 711 (1958).

Apart from the obvious dangers, the plaintiff, as an invitee, could assume that the premises were reasonably safe for the use to which the defendant had put them. Geraghty v. Burr Oak Lanes, Inc., supra, 158.

The limits of the duty owed by one inviting another on his premises is well-defined in Altepeter v. Virgil State Bank, 345 Ill App 585, 104 NE2d 334 (1952), at page 598:

“An owner of property is not an insurer against accident occurring on the premises of the owner, and an owner’s liability to an invitee for injuries not intentionally inflicted must be predicated upon negligence, and no presumption of negligence on the part of the owner arises merely by showing that an injury has been sustained by one rightfully upon the premises. (Citation.) The rule is that an occupant or owner of premises owes to an invitee a duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation, not to lead such person into a dangerous trap and to give such person adequate and timely notice and warning of latent or concealed perils which are known to the owner but not to the invitee.”

An invitee using the premises for his benefit and that of the owner, must be held to be equally aware of all the obvious and normal hazards which accompany the use being made of the premises. The owner’s liability is bottomed on his superior knowledge, presumed or otherwise, of defects in the premises which another is invited to use.

We do not believe that the plaintiff assumed all the risks incident to tobogganing, or that the defendant was an insurer against injury. We do believe that the duty which it owed to the plaintiff-invitee was to exercise the care of a reasonable man to keep the premises reasonably safe for the intended use, and to give her adequate warning of those dangers which were not readily apparent.

The duty imposed upon the owner of land with reference to an invitee is consistent with conduct normally described as negligent. Such conduct is a failure to exercise the care that a reasonable man of ordinary prudence would exercise to guard against any reasonably foreseeable, unreasonable risks of harm which might flow from his conduct. The essential element of the negligence is the exposure of another to an unreasonable risk of harm. Mick v. The Kroger Co., 73 Ill App 2d 155, 159, 160, 218 NE2d 654 (1966). Therein lies the distinction between an insurer — responsible for all enumerated risks — , and a negligent person — responsible only for those risks unreasonably imposed upon another.

Whether the risks, imposed upon the plaintiff by the defendant in allowing the run to remain in such condition that it could be used for tobogganing and in permitting it to be used without any warning signs, were unreasonable risks under the circumstances, and whether the defendant breached its duty to the plaintiff as invitee, were essentially factual determinations for the jury. Garrett v. National Tea Co., 12 Ill2d 567, 573, 147 NE2d 367 (1958); Mick v. The Kroger Co., supra, 160; Cooley v. Makse, 46 Ill App2d 25, 32, 196 NE2d 396 (1964). For liability to be imposed, the injury must be the natural and probable result of a negligent act or condition and be of such character that an ordinarily prudent person ought to have foreseen as likely to occur. Driscoll v. Rasmussen Corp., supra, 78.

The jury might well have found that permitting a straight run, some 10 to 12 feet in width, to be used for tobogganing, was not negligence. It might well have felt that the existence of such a run could provide a safer place for tobogganing than an uncleared hillside interspersed with trees, which hillside might have been found, and used, elsewhere in the park. The jury might also have inferred that the signs at one time found on the run were primarily to prevent the use — for any purpose — of the wooden slide prior to its being dismantled; and that the purpose of the signs was to protect against or prevent persons from going into the river at the bottom of the slide. It could have found that notwithstanding the fears expressed by the defendant relative to the curve by the river, there was in fact no danger from the river as evidenced by the one and one-half hours of tobogganing without any apparent mishap in this respect. In view of the expressed concern of the defendant, perhaps the jury would have reached a different conclusion had one of the group been injured by a toboggan going into the river.

There could be endless speculation as to what the jury might, or could, have determined. However, we cannot conclude that all of the evidence is such, that when viewed in its aspect most favorable to the defendant, so overwhelmingly favors the plaintiff that no contrary verdict based thereon could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967). Accordingly, it was not error for the trial court to refuse to grant the plaintiff’s motions for directed verdict and for judgment notwithstanding the verdict.

Likewise, we cannot say that the special findings or verdict was contrary to the manifest weight of the evidence. There is, really, little or no dispute in the facts presented in this case. There are a number of inferences and conclusions which the jury might reasonably have drawn from these facts, including those reached by it in its special findings and verdict.

The original complaint, in essence, charged, in paragraphs 5, 6 and 11, that the defendant negligently constructed and maintained a toboggan slide and invited the public to use it. The defendant’s answer admitted the construction of a toboggan slide but denied that the public on the date in question was invited to use it — the slide having been dismantled — and stated “that by appropriate signs at said site, the members of the public, including the plaintiff, were expressly prohibited from using said toboggan slide for sledding or tobogganing . . . The answer further stated that the natural slope where the slide structure originally had been erected “was closed to the public for sledding or tobogganing purposes, and that appropriate large wooden signs had been placed at the top of said slope stating, ‘Danger — No Sliding.’ ”

The plaintiff contends that the refusal of the trial court to admit this answer into evidence, as an admission, was error. Where admissions are made in a pleading to settle the issues, which is not amended or withdrawn, as in the case at bar, they constitute judicial admissions for the purposes of that action. Their effect is that they are conclusive as to the matters admitted, whereas evidentiary admissions need not be conclusive upon the party making them. Coss v. Magdziasz, 65 Ill App2d 40, 42, 212 NE2d 717 (1965); Precision Extrusions, Inc. v. Stewart, 36 Ill App2d 30, 50, 51, 183 NE 2d 547 (1962); Cleary, Handbook of Illinois Evidence, 2d ed, §§ 5.1, 17.12. Whether such judicial admissions should be formally offered as evidence in the case in which they are a part of the record, or whether they are to be commented on without formal offer, depends on local procedure. See: Card, Illinois Evidence Manual (1963), Rule 199, Comments.

During the course of the testimony, the park director was asked by counsel for the plaintiff whether any signs were posted stating that the area was closed for tobogganing. He testified that such a sign was placed on the site prior to the time the slide was dismantled, but he could not say whether it was there on the date in question, but he thought it was not. Counsel then asked him whether on this date the toboggan site was a prohibited area, to which he answered “No,” and stated that the plaintiff was not prohibited from using the slide area. Counsel for the plaintiff then read the paragraphs from the answer above referred to — which stated that the site was closed to the public and the area prohibited and posted against tobogganing. The witness admitted that the answer contained those statements, and the court subsequently permitted the answer to be used for impeachment purposes but denied its admission into evidence.

Certainly, the plaintiff does not suggest that the answer should be taken as establishing that there were signs posted and present prohibiting the plaintiff from using the area for tobogganing. Such would hardly be an admission. If this fact were true, it would serve to remove the plaintiff from the protection otherwise afforded her as an invitee. DuMond v. City of Mattoon, supra, 87. If the defendant could have substantiated these allegations, it would have raised a formidable defense, in contrast to an admission.

There is no dispute that the defendant considered the area fraught with some danger. The peril which concerned the defendant was the presence of the river, and this was one of the reasons for dismantling the slide. However, there is no dispute that the area was open to the public on the day in question without signs of any type being posted.

Whether this was negligence on the part of the defendant was for the jury to weigh and determine, along with all the other circumstances before it, in arriving at its verdict. In the light of these facts, we do not believe that the plaintiff was prejudiced by the refusal of the trial court to admit the answer into evidence.

The plaintiff also offered to prove, through the testimony of a newspaper reporter, that a park district police officer had said to him, after the incident, that the run had been closed because the trees bordering the run posed a danger. The plaintiff contends that the testimony of the newspaper reporter should have been admitted to show the notice to the defendant, through its agent — the police officer — of the dangerous condition.

The cases cited by the plaintiff are appropriate authority for the proposition that an agent’s knowledge, as to matters and when acting within the scope of his agency and authority, may be imputed to his principal. In this case, however, there is nothing to suggest that it was within the scope of the agency and authority of the park district police officer to close toboggan runs or to assign reasons therefor.

It is difficult to comprehend how the statement of the police officer could be admitted into evidence on the theory that it imputed notice to the defendant that the run had been closed because of the trees. If there were such information, it would have come from the principal— the defendant; and it would then have been unnecessary to impute such knowledge. If the plaintiff had called the park district police officer, then perhaps it could have been determined if the statements made by him were mere assumptions, perhaps after the fact, or possible things told to him by others unknown.

However, the police officer was not called. The danger in permitting the reporter to testify to such a vague and questionable statement made to him after the fact, is obvious. If this were an admission, as contended by the plaintiff, the reporter could not testify concerning it since it is not an exception to the hearsay rule. A narration or statement by an agent after an event has passed, and in regard to such event, does not bind the principal and cannot be proved as an admission. Baier v. Selke, 211 Ill 512, 518, 71 NE 1074 (1904); Hudson v. Augustine’s, Inc., 72 Ill App2d 225, 236, 218 NE2d 510 (1966); Fortney v. Hotel Rancroft, Inc., 5 Ill App2d 327, 333, 125 NE2d 544 (1955).

The plaintiff also contends that the court erred in excluding photographs of the wooden slide originally on the run. There were numerous photographs in evidence accurately depicting the entire hill as it appeared on the date in question. We are of the opinion that the trial court correctly exercised its discretion in denying admission into evidence of the photographs of the wooden slide as it was when still on the hill. Brackett v. Osborne, 44 Ill App2d 441, 458, 195 NE2d 8 (1963).

The plaintiff has charged that the court erred with reference to three instructions: She complains that an instruction was refused when in fact it was given. The other alleged error is with reference to a revised version of instruction IPL No. 12.04. Both the plaintiff and the defendant submitted a revision of such instruction. The court refused that submitted by the plaintiff and gave the revision tendered by the defendant. The first paragraph of such instruction tendered by both the plaintiff and the defendant was substantially the same. However, the defendant added a further paragraph to its instruction. The plaintiff contends that the last paragraph of the instruction should not have been given. It states:

“However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.”

The plaintiff argues that there was no issue or evidence as to the conduct of any person other than the defendant with reference to the cause of the plaintiff’s injury. The defendant, however, sought to establish and argued, that in the absence of any defects on the run causing the toboggan to veer, the fact that the three boys — two behind and one in front of the plaintiff— simultaneously fell from it, whether because of horseplay or otherwise, at a time when the toboggan was otherwise going straight down the run, was the sole proximate cause of the injury. Whether the jury could or would adopt such inference from the evidence, there was sufficient basis for such a theory and the defendant was entitled to have the jury instructed thereon. Hack v. New York, C. & St. L. R. Co., 27 Ill App2d 206, 225, 169 NE2d 372 (1960).

The trial court gave a single verdict form to the jury, asking it either to find the defendant guilty or not guilty. The plaintiff contends that this was error in that the principles of law involved in Count I — relating to negligence — and in Count II — to wilful and wanton conduct — are different, and that the jury should have been given separate forms of verdicts as to each count. The defendant points out that the plaintiff neither objected to the form of verdict when given by the court nor claimed such circumstance as error in the post-trial motion, and, consequently, that the point may not now be raised for the first time on appeal. Nelson v. Union Wire Rope Corp., 31 Ill2d 69, 114, 199 NE2d 769 (1964); Marks v. Newburger, 69 Ill App2d 220, 224, 216 NE2d 250 (1966); Vierke v. Sunset Valley Creamery Co., 58 Ill App2d 323, 330, 208 NE2d 305 (1965).

We might add that while the plaintiff’s contention as a general proposition is correct (Palsir v. McCorkle, 70 Ill App2d 425, 429, 430, 216 NE2d 682 (1966); Eggimann v. Wise, 41 Ill App2d 471, 485, 191 NE2d 425 (1963)), there was no possibility that the jury was confused by the verdict form in the present case— the danger concerning the court in Palsir and Eggimann. The jury was given special interrogatories which effectively covered the separate issues raised by each count. The answers to the interrogatories would have clearly demonstrated on which count or counts the jury found the defendant guilty, had it done so. The answers were consistent with the general verdict of not guilty rendered by the jury. We do not believe that the manner in which the case was submitted either tended to confuse the jury or prejudice the plaintiff.

For the reasons stated herein, the judgment of the trial court is affirmed.

Judgment affirmed.

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


author: ALLOY, P. J.

text:
    Nitrin, Inc., a Corporation, International Minerals & Chemical Corporation, a Corporation, and Protection Mutual Insurance Company, a Corporation, Plaintiffs-Appellees, v. American Motorists Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 67-57.
    Third District.
    April 17, 1968.

      Clausen, Hirsh, Miller & Gorman, of Chicago, and Reidy, Katz, McAndrews, Durkee & Telleen, of Rock Island, for appellant.

      Sidley, Austin, Burgess & Smith, of Chicago, Bozeman, Neighbour, Patton & Henss, of Moline, and Robins, Davis & Lyons, of Minneapolis, Minnesota, for appellees.
   ALLOY, P. J.

This cause arose as a declaratory judgment action brought by plaintiffs, Nitrin, Inc., and International Minerals & Chemical Corporation, (to which we will refer as “Nitrin”) and Protection Mutual Insurance Company as against defendant, American Motorists Insurance Company, seeking a judgment declaring and determining that the explosion which occurred at the Nitrin plant near Cordova, Illinois, on November 24, 1963, was a loss covered by the policy issued by American Motorists. American Motorists denied coverage on the ground that the rupture was caused directly or indirectly by fire, a risk covered by the policy issued by Protection Mutual (another of Nitrin’s insurers). Following American Motorists’ denial of coverage, Protection Mutual joined as a plaintiff in the action.

The cause was tried by the court without a jury. The trial lasted almost three weeks following which the trial court entered judgment in favor of Nitrin and International Minerals, concluding that the loss on November 24, 1963, was one insured by American Motorists under its policy. The court found that the loss was not directly or indirectly caused by fire. The losses involved are for interruption of business of the plaintiff Nitrin.

On review in this Court, defendant American Motorists Insurance Company contends (1) that the trial court’s decision in concluding that there was no antecedent and independent hostile fire as the source of the explosion, was contrary to the manifest weight of the evidence (2) that the trial court abused its discretion in denying leave to defendant to amend and present an additional policy defense and (3) that the trial court erred in denying defendant’s motion for judgment in its favor on the pleadings on the ground that a reply was not filed denying certain affirmative matter in defendant’s answer.

It appears from the record that Nitrin was in a joint venture with Northern Natural Gas Company and International Minerals in operating a modern fertilizer plant on a tract located on the Mississippi River near Cordova, Illinois. The installation was designed to produce three basic forms of nitrogen fertilizer — ammonia, ammonium nitrate and urea. The raw materials used to make ammonia (NH3) are air, natural gas and steam. Natural gas or methane, is made up of hydrogen and carbon. In air, there is a mixture of four parts of nitrogen and one part of oxygen with other gases making up about 1% of the mixture. Water, of course, is a combination of hydrogen and oxygen. The first step in making ammonia is to break down the methane, freeing the hydrogen from the carbon. Natural gas and steam are introduced into the primary reformer, the first vessel in the “stream” of vessels used in the process. Steam is used to break down the methane in the primary reformer in the presence of a catalyst and to supply more hydrogen and oxygen to the process. The primary reformer is also a furnace since there are burners used to heat up the process gas and steam in the unit. The partially reformed gas, which is called “process gas,” exits from the primary reformer and passes to the secondary reformer. The problem in the instant case arose in the secondary reformer.

It is in the secondary reformer that air is introduced into the process. The gas is piped into the secondary reformer near the top. Air is then introduced in the secondary reformer at a pressure of about 300 lbs. per square inch at 300° F. The air comes in to what is known as the “air ring” of the secondary reformer. The air ring is about 8 inches in diameter near the top of the secondary reformer. Four inlet pipes come out of the air ring and rise vertically and, thereafter, turn laterally into the top portion or dome of the secondary reformer. Located in this secondary reformer is also a metallic nickel catalyst. An exothermic reaction takes place in the secondary reformer which causes the oxygen to separate from the nitrogen and combines with carbon which is present in the process gas forming carbon dioxide and carbon monoxide. As a result of the exothermic-heating generating reaction, the temperature of the combination of the process gas is increased to between 1880° F and 1980° F. The process gas then leaves at a temperature of from 1700° F to 1750° F. There is no evidence that fire exists in the secondary reformer while this controlled exothermic reaction takes place.

After the gases leave the secondary reformer they pass through various other vessels and equipment along the line to complete the process of making ammonia. At all stages of the process there are devices which measure, regulate and control the component parts of the entire system. The devices and controls measure and record, among other things, temperatures, pressure and rate of flow of the gases involved in the process.

The record shows that at about 2:35 a. m. on the morning of November 24, 1963, the pressure controller in the air line which fed compressed air into the secondary reformer froze. The result was that the secondary reformer was shut off for about an hour. During this period the process gas continued to flow into the secondary reformer but it was vented out. The air line was repaired, and a Mr. Kreuder, the operator at this time, stated that he slowly reintroduced air into the secondary reformer. This was approximately at 3:40 or 3:45 a. m. He noted a temperature rise indicating the exothermic reaction had begun. He testified that he did not notice anything out of the ordinary as he reintroduced the air. Approximately 6 minutes later there was a loud explosion as a rupture occurred in the air ring surrounding the secondary reformer. The rupture in the pipe was about 18 inches long. As a result of such rupture it took a period of 10 days to place the plant back in operating condition. It was the loss from such interruption of business which is the basis of the action before us.

The plaintiff-manufacturer Nitrin had a Boiler and Machinery policy with American Motorists Insurance Co. and also had a policy with Protection Mutual covering fire and extended perils other than those covered under the boiler policy. Both policies provided for coverage for loss of use and occupancy due to the perils covered by the particular policies. As we have indicated, Protection Mutual denied coverage stating that the loss resulted from an explosion. American Motorists denied coverage stating that the loss was caused directly or indirectly by an antecedent hostile fire and was, therefore, excluded under its policy.

The primary issue before us is whether or not the trial judge made a finding against the manifest weight of the evidence in concluding that the loss was covered under the American Motorists policy. In this connection we have frequently stated on appeal that the decision of a trial judge on questions of fact must be palpably and clearly erroneous even when considering the evidence in a light most favorable to appellees (LaSalle Nat. Bank v. Wieboldt Stores, Inc., 60 Ill App2d 188, 210, 208 NE2d 845; Lubin v. Goldblatt Bros., Inc., 37 Ill App2d 437, 441, 186 NE2d 64). We note that in the case before us the explosion occurred inside the secondary reformer. While we have briefly summarized some of the salient facts in connection with this case, it is notable that no one actually saw the explosion or was even in the room when it occurred. The evidence as to the cause of the explosion consisted principally of testimony as to charts, readings on dials, examination of the damaged pipe, and theories of witnesses as to how such explosion might have occurred in the light of circumstances prior to and just after the explosion.

The principal witness for American Motorists, a Dr. Lewis, had a theory that the explosion resulted from an antecedent and hostile fire. He asserted that during the period when the secondary reformer was being started up again, after the air had been shut off, there was a fire or flame in the dome of the reformer. He concluded that this was not the normal operating flame because it occurred during the starting of the process after the air had been shut off for about an hour. He stated that these unnatural flames came as a result of delayed ignition which occurred because of an improper ratio of air to fuel when the compressed air was again forced back into the reformer. He concluded that the flame went down the laterals to the air ring (where it would not normally be) as two separate flame fronts, and that the two flame fronts then each came around the air ring where they met causing an explosion. Dr. Lewis’ conclusion was that there was a combustible mixture in the air ring where the explosion occurred because there was dead air in that particular section of the air ring and hydrogen mixed with the dead air during the hour that the air was not being forced into the reformer.

While the recital of facts herein is oversimplified, there was specific testimony to refute Dr. Lewis’ conclusions and virtually every important element of his theory of an independent and antecedent and hostile flame causing the explosion. The plaintiffs’ testimony tended to show that there was no possibility of a stagnant build-up of explosive gas in the area of the air ring where the explosion occurred. The evidence tended to show that without such explosive gas there could not have been an explosion under the theory of defendant as testified to by Dr. Lewis. There was also testimony that there was no delayed ignition in the reformer which could have created the flame, theoretically postulated by Dr. Lewis, to ignite the supposed combustible gas in the air ring. There was also direct testimony by the plaintiffs’ witness, who introduced the fuel mixture into the reformer, that the mixture in the dome was not abnormal but was normal as the flow of gas had also been reduced along with the air input. This witness was corroborated by two other witnesses who testified that when the air was put back into the reformer there was normal reaction in the secondary reformer and no delayed ignition.

The evidence on behalf of plaintiffs basically tended to show that the explosion was not the result of an antecedent and hostile fire as contended for by American Motorists. On the basis of the record, therefore, we must conclude that the decision of the trial court was not against the manifest weight of the evidence since the trial court had the benefit of hearing all of the witnesses. We must, therefore, conclude that the trial judge did not commit reversible error in stating his conclusion as to the causative factors which produced the explosion.

The second issue presented by defendant is the assertion that the trial court abused its discretion in denying defendant’s motion to amend its answer. The motion was made over two years after the complaint had been filed in the declaratory judgment action. American Motorists attempted to amend the answer to set up a defense based upon the definition of an “accident” as covered in the policy. The amendment set forth a phrase in the policy which said:

“but Accident shall not mean . . .
“ (f) explosion of gases within the furnace of any Object or within the gas passages therefrom to the atmosphere.”

It was contended by American Motorists, at that time, that it had just learned that this defense was available due to correspondence with Protection Mutual Insurance Company.

We have frequently observed that the question of permitting amendments to pleadings rests within the reasonably-exercised discretion of the trial judge (Klinke v. Great Northern Life Ins. Co., 318 Ill App 43, 54-55, 47 NE2d 506). We do not feel that there was an abuse of discretion by the trial judge in refusing to allow the amendment in the case before us. American Motorists had an opportunity to investigate the scene of the explosion in dealing with the insured Nitrin. It had a representative on the scene the day of the explosion and every source of information was apparently available to it with respect to the explosion. Pleadings had been settled. To allow the amendment at the time the request was made would again open up problems of discovery in depositions. No persuasive reason was given why defendant American Motorists did not discover the defense sooner and there was actually no showing that its failure to discover the defense was due to the fault of any party other than American Motorists.

We also note that the evidence at the trial disclosed that American Motorists’ contention with respect to the “furnace” exclusion would not have been supported by the evidence. The secondary reformer is an unfired pressure vessel and has no exterior heat source (such as the primary reformer referred to) and could not be classified as a “furnace.” The air line which ruptured was not a gas passage from the secondary reformer to the atmosphere (a chimney) but was a line leading from the compressor delivering air to, and not from, the secondary reformer. It, therefore, appears from the record that even if the contention had been raised by a timely amendment, it is difficult to conceive of any evidence which could have been presented by American Motorists on this issue which could have affected the outcome of the case.

The final issue is whether the trial judge committed reversible error in failing to grant a motion for judgment for defendant on the pleadings on the theory that plaintiff had failed to reply to an affirmative defense. The complaint for declaratory judgment alleged that the loss by explosion was covered by the American Motorists’ policy. American Motorists denied liability, contending that the loss was caused by a risk which was covered by the fire policy of Protection Mutual. This denial was based on the premise that the loss was caused directly or indirectly by fire. Plaintiffs had alleged specifically that the loss was due to an explosion against which defendant had insured them.

We note that the complaint clearly set forth that American Motorists had issued the general boiler and machinery policy and that a fire policy had been issued by Protection Mutual. It was asserted in the complaint that the policies were interrelated and mutually consistent, so that Protection Mutual carried the risk of certain types of loss and American Motorists carried the risk of other types of loss. It was also alleged that the explosion and resulting damage was a risk covered by American Motorists policy. The answer of defendant asserted that the risk was not covered by American Motorists on the ground that the loss was caused directly or indirectly by fire, and that the explosion and damage resulted from a fire, and, therefore, was a risk covered by Protection Mutual. In Farley v. Security Ins. Co. of New Haven, Conn., 331 Ill App 448, 73 NE2d 662, the Appellate Court stated, in considering a similar problem, that a reply to a contention that plaintiff had violated policy provisions was unnecessary where action was filed upon the policy. The assertion in the instant case that the damage resulted from an explosion coupled with the recital as to coverage of risks by American Motorists as to explosion and Protection Mutual as to fire similarly made a further reply to the American Motorists defensive contention unnecessary. We believe the court in the case before us was correct in denying the motion. Clearly, an affirmative defense can be anticipated and denied by the complaint thereby making a reply unnecessary.

Under the procedural rules in this State, it has been asserted that where a complaint meets and denies matters set up in the answer, no reply to the answer is required (Schiff v. Schiff, 25 Ill App2d 157, 165, 165 NE2d 713). We feel that this rule should be construed liberally. Decisions of trial courts based upon a careful review of the evidence should not be reversed upon a purely technical interpretation of pleadings. We must also consider that defendant waived such question of failure to reply by offering evidence with respect to the affirmative defense (Schiff v. Schiff, supra; Pree v. Hymbaugh, 23 Ill App2d 211, 162 NE2d 297; Cienki v. Rusnak, 398 Ill 77, 75 NE2d 372).

Since we find no reversible error in the record, the judgment of the Circuit Court of Rock Island County will, therefore, be affirmed.

Judgment affirmed.

STOUDER and CULBERTSON, JJ., concur.


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James E. Jackson, Defendant-Appellant.
    Gen. No. 10,871.
    Fourth District.
    April 18, 1968.

      James R. Potter, of Springfield, for appellant.
    Charles J. Ryan, State’s Attorney of Morgan County, of Jacksonville, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant was found guilty, in a jury trial, of the offense of robbery and sentenced to a term of not less than three nor more than fourteen years in the Illinois State Penitentiary. In this appeal from that conviction, the defendant contends that there were certain errors and irregularities in the proceedings that deprived him of a fair trial and that the evidence failed to establish his guilt beyond a reasonable doubt. Our consideration of these points necessitates a summary recital of the evidence.

Three witnesses "testified for the People — Alberta Cochran, Richard Cruzan and Deputy Sheriff William Dean Colwell. Alberta Cochran, in her testimony, related that she was employed as a waitress in a diner in Meredosia, Illinois, and that on April 21, 1966, at around 10 a. m., there were three patrons in the diner — the defendant and one William Flynn and Richard Cruzan. During the course of her testimony, she identified the defendant Jackson and Flynn as the two men who were in the restaurant.

Cruzan testified that he was in the restaurant at around 10 a. m. on April 21 and that the time that he was there two other customers were present, identified by Cruzan as the defendant and Flynn. He related a conversation with Mrs. Cochran as to his proposed itinerary for the morning and indicated that the conversation would have been audible to the defendant and Flynn. Flynn and defendant left the restaurant at approximately the same time as Cruzan. Cruzan went from the restaurant to a residence about one mile north, calling on prospects for some insurance. As he was proceeding from the residence north on a road described as the beach road, toward Sunset Beach, he came upon an automobile that was stopped. He described the car. He stopped his own car, got out and approached the vehicle in front of him and made inquiry as to whether or not he could be of assistance. A man at the car made a threatening gesture, holding something in his hand, and another man, identified as the defendant Jackson, came up from behind the witness and grabbed him. The witness was beaten. He then related that he got back into his car, turned it into a lane and headed back toward Meredosia. He apparently lost consciousness after he began to drive away from the scene. The persons to whom he sold the insurance saw the car and when the witness regained consciousness, these persons were at his car in a ditch.

Money and checks that had been on the person of the victim were missing. The witness was subsequently hospitalized for some eleven days. The defendant and Flynn were positively identified by the victim as the two persons who attacked and robbed him. The witness described the automobile of his assailants and an object sticking out of the window of the car which he stated looked like a power saw.

William Dean Colwell, in his testimony for the People, related that in his capacity as a deputy sheriff he investigated the robbery of Cruzan on April 21, 1966. In connection with that investigation, he alerted neighboring police jurisdictions with reference to the car and its description and a physical description of the assailants. In response to a call from the sheriff of Brown County, the defendant and Flynn were arrested. They had a car similar to the described vehicle and there was a chain saw sticking out the right rear window. From pictures of the defendant and Flynn, Cruzan identified them as his assailants, and they were arrested.

Several witnesses testified for the defense. The substance of their testimony was to establish an alibi for the defendant. It is not necessary to relate this testimony in detail, but it is clear from the testimony that if these witnesses were believed by the jury their testimony would so locate the defendant at the time of the robbery as to make it physically impossible for him to have been at the scene of the crime. In this case, as in the case of William Flynn, the alleged accomplice previously considered (People v. Flynn, 89 Ill App2d 328, 231 NE2d 710 (4th Dist 1967)), it cannot be said from our examination of the record that the defense of alibi was so conclusive as to raise a reasonable doubt warranting this court to reverse the conviction. The question of guilt or alibi on this record became solely a question of credibility for the trier of fact.

During the trial of this case, the deputy sheriff Col-well gave a member of the jury a ride home. On the occasion of that ride another deputy and William Flynn were in the automobile with Colwell and the juror, John Farmer. When this fact was made known to the court, Colwell was recalled and he described the automobile ride as lasting for approximately five minutes and testified that there was no mention of anything to do with the trial by any of the occupants of the car during the drive. The jury returned a verdict finding the defendant guilty. The jury was polled and the court discharged the jury.

The court then called the juror, John Farmer, as a witness. He related that he was given a ride home by Col-well and that William Flynn and another deputy were in the car. He also testified that there was no mention between them of anything or anyone involved in the trial. The motion for a new trial asserted that the defendant was denied his right to a trial by a fair and impartial jury because of this action on the part of a prosecution witness, a deputy sheriff, during the trial of the proceedings. From this record, in connection with this point, we learn that William Flynn was admitted as a voluntary patient at the Jacksonville State Hospital during the course of the trial and was not called as a witness in the proceeding by reason of that fact. This was stipulated to by the respective parties.

The defendant argues rather persuasively that allowing the jury to separate and allowing a juror to accept a ride from a deputy sheriff who was a witness at the proceeding so contaminates the proceeding as to require a new trial. The defendant relies heavily upon the case of Turner v. State of Louisiana, 379 US 466, 13 L Ed2d 424, 85 S Ct 546 (1965). In that case, two deputy sheriffs who were the two principal prosecution witnesses were in continuous and intimate association with the jurors. On appeal, the Supreme Court of Louisiana determined that no prejudice was shown and affirmed. In reversing, the United States Supreme Court concluded that “it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution.” (379 US at 473.) Prejudice was therefore determined to have been established as a matter of law by reason of the continuous, close association of the prosecution witnesses and the jury. The trial court, in this case, in an effort to determine the existence of prejudice, called the juror involved and the deputy sheriff. He determined that there was no prejudice shown.

We are not persuaded that the casual relationship here, however ill-advised, was such as would constitute prejudice of the defendant’s right to a fair trial as a matter of law. All of the matters developed subsequent to the proceeding, upon inquiry, negated the existence of any prejudice. That which the trial court did was in accord with the recent statement of the Supreme Court in People v. Georgev, 38 Ill2d 165, 230 NE2d 851 (1967), and cases there cited.

Finally, it is urged that the defendant was entitled to a new trial by reason of the fact that one of the jurors, on the night the jury separated between the two days of trial, went back to his employment as a hotel clerk and had a conversation with a Mr. Leadill who said that he knew the defendant’s alleged accomplice, Flynn, and one of the persons who testified to establish alibi. Leadill allegedly told him that he would not believe either the accomplice or the alibi witness under any circumstances. This statement by the juror was established by the testimony of an attorney who related it as a conversation with the juror. This juror, Thomas Mandeville, was called as a witness in connection with the motion for a new trial and related a substantially different story. This juror further testified that the alleged conversation was not on the night that the jury separated and that he had heard nothing before or during the trial with reference to the proceedings or the participants. The motion for a new trial was then denied. We find no error.

This record demonstrates that the trial court made every effort to ascertain the existence of any prejudice that would deny the defendant a fair trial. No prejudice was established and no facts are demonstrated that, under the rule in Turner, would require us to find prejudice as a matter of law. People v. Georgev, 38 Ill2d 165, 230 NE 2d 851 (1967); People v. Cain, 365 Ill 494, 6 NE2d 1013 (1937); see also Anno 41 ALR2d 227, 249. The defendant sought a new trial on newly discovered evidence. The defense was, as we have noted, one of alibi. Six alibi witnesses did testify. That which is described as newly discovered evidence is, in our opinion, clearly cumulative and is not of such a conclusive character as to require a new trial. The judgment of the circuit court of Morgan County is affirmed.

Judgment affirmed.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Phillip Sharp, Defendant-Appellant.
    Gen. No. 67-96.
    Fifth District.
    April 19, 1968.

      Don P. Koeneman, of Chester, Illinois, for appellant; Byron L. Connell, State’s Attorney of Pulaski County, of Mound City, Illinois, for appellee.
   Opinion

PER CURIAM.

Not to be published in full.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carl R. Hoerner, et al., and Harold Landolt, Chairman of the Madison County Board of Supervisors, Defendants-Appellants.
    Gen. No. 67-88.
    Fifth District.
    April 19, 1968.
    Dick H. Mudge, Jr., of Edwardsville, for appellants; no brief filed for appellee.
   Opinion

PER CURIAM.

Not to be published in full.


text:
    Clyde Roberson, et al., Plaintiffs-Appellees, v. Dan Morgan, Defendant-Appellant.
    Gen. No. 68-7.
    Fifth District.
    May 20, 1968.
    John E. Jacobsen, Craig & Craig, of Mt. Vernon, for appellant; no brief filed for appellees.
   Opinion

PER CURIAM.

Not to be published in full.