author: EBERSPACHER, J.

text:
    Steven Scott Hudson, a Minor, by Ronald C. Hudson, His Father and Next Friend, Plaintiffs-Appellants, v. Augustine’s, Inc., a Corporation, and Thomas O’Donnell, Administrator of the Estate of Jewell Eldridge, Deceased, Defendants-Appellees.
    Gen. No. 64-114.
    Fifth District.
    June 21, 1966.

      John E. Norton, Harold Jennings, and Sprague and Bock, all of Belleville, for appellants.
    Jack E. Horsley and Whitney D. Hardy, of Craig & Craig, of Mattoon, for appellees.
   EBERSPACHER, J.

This is a personal injury case arising out of an accident which occurred in a construction area in back of Augustine’s, a restaurant located in Belleville, on October 12,1961.

Augustine’s restaurant is a family owned corporation and Mary Hudson is a sister to the three Augustine brothers who were the stockholders and officers of the corporation. On the day in question, Paul Augustine brought his mother, Martha, his sister Mary Hudson, and Steven, the minor plaintiff, to the restaurant. Mary was going to take Steven, who was four and one-half years old, to the barbershop but Paul asked her to help serve a special party. Mary agreed, entered the kitchen and placed Steven in front of a box near the pizza oven in the kitchen. She gave him a pencil and some drawing paper to occupy his time. She asked her mother, Martha Augustine, to watch the plaintiff and Mary took her place on the food assembly line. Within a very few minutes, Steven disappeared. It later developed that the plaintiff had left the kitchen and gone into a construction area behind the building where materials were being assembled incident to a remodeling project. Jewell Eldridge, a deaf-mute, was an employee of the corporation. He worked as a general handyman and his duties included driving a certain panel truck owned by the corporation. At the time of the occurrence, there was lumber in the truck stacked to a depth of twelve or thirteen inches and projecting three or four feet behind the truck. Both doors at the rear of the truck were open to accommodate the projection of the lumber. Eldridge had driven the panel truck, with the load of lumber, to the rear of the restaurant near the remodeling project. Eldridge backed the truck up to within three feet of the restaurant door preparatory to unloading the lumber. He got out, went back to remove the lumber from the truck and saw Steven crying and with his clothing tom. He immediately picked up the minor plaintiff and carried him in to the kitchen. Other than Eldridge and the plaintiff, there were no eyewitnesses to the accident or the occurrences immediately preceding it.

On April 20, 1962, Davis, an investigator for plaintiff’s attorney, through Dale Schwahn acting as an interpreter, asked Eldridge a series of questions concerning the accident in which plaintiff was involved on October 12, 1961. Dale Schwahn had also been an employee of Augustine’s, who had been working with Eldridge at Augustine’s for approximately six years. Present also at the time these questions were propounded was a Notary Public, James Keehner, and Jesse L. Hart, a court reporter. First, Schwahn was sworn by the Notary to truly and correctly interpret Eldridge’s statements; the Notary then had Schwahn relate in sign language an oath that Eldridge would tell the truth, the whole truth and nothing but the truth to which Schwahn replied, “He says he does.” Next, in the statement appears a series of questions by Davis directed to and answered by Schwahn, to the effect that he, Schwahn, was not an interpreter for the deaf and dumb, but only for Eldridge who had taught Schwahn “everything, the signs and that,” that Schwahn had been communicating with Eldridge “quite easily” for the 6 years they had been employed together, that Eldridge had taught Schwahn “the basics, the spelling,” and that Schwahn had “not really” had any trouble in communicating with friends of Eldridge’s wife in “this sign language used.” (The record does not show that either Eldridge’s wife or her friends were deaf or dumb). In answer to Davis’ question, “Are you the only person who communicates with Mr. Eldridge with this language?” Schwahn answered, “Ralph Augustine can to a certain extent” and in answer to Davis’ question, “They depend on you primarily for communication?” Schwahn answered, “Well no. See I don’t know, you can make motions for somethings to do, you know,” and in answer to Davis’ question, “As far as getting a specific idea across, rather than pointing or something, with the sign language you use, do they depend on you primarily?” Schwahn answered, “Yes, for certain things, yes.”

Davis then proceeded to question Eldridge through Schwahn, who stated with reference to the occurrence that Eldridge had seen the plaintiff at Augustine’s on previous occasions with his mother and had at the direction of Tony Augustine gotten the lumber and that he drove into Augustine’s lot, saw the plaintiff when he started to back up to a door through which he was going to take the lumber; that he was about 20 feet from the door and that at that time the plaintiff was playing on the ground about 10 feet to the right of the truck, facing the truck, and that the plaintiff looked at the truck and started playing on the ground, that he did not sound his horn, that he backed up at a speed no greater than 5 or 10 miles per hour, and while backing used both the rearview mirror and the open door to look and also that he turned his head to the right to look out the back of the doors; he did not know the plaintiff had been struck until he had stopped the truck about 3 feet from the door and found plaintiff lying on the ground at the left-hand side of the truck when he had gotten out of the truck and gone to the back of it to unload. Eldridge also answered that he had driven this panel truck many times and on other occasions had delivered to this particular door, that normally there were no children about this area, and that although he had seen this plaintiff with larger boys in the area of this back door, he had never seen plaintiff in this area by himself, prior to this accident. Eldridge presented his driver’s license, from which Davis read that it had a code restriction of corrective eye lenses and outside rearview mirror.

The transcript of the questions and answers made by the court reporter also included statements directed by Davis to Schwahn, and shows that a considerable amount of difficulty was encountered in the questioning and interpreting with numerous instances of Schwahn himself giving the answers. In one instance, according to the transcript, Eldridge answered that he had seen the plaintiff playing in the area of the accident an hour before he started backing up; whereas the evidence indicates that the plaintiff had not, on this particular day, been on the premises an hour before that time, and was taken by his mother directly into the kitchen upon arrival. In answer to Davis question, “From the time he first saw the boy until the time he realized he had hit the boy, approximately how much time had elapsed?” Schwahn answered, “He says ten minutes. See, sometimes certain things you can explain to him you would explain to a normal person — there is lots of things he don’t understand. I don’t know how to exactly explain it.”

Eldridge died on May 10, 1962, and on May 17, 1962, a complaint was filed against Augustine’s, Inc., and on February 25, 1963, a supplemental complaint was filed against Thomas O’Donnell, as Administrator of the Estate of Jewell Eldridge, deceased.

The transcript of the questions, answers, statements and conversations, made by the court reporter, was identified as Plaintiff’s Exhibit 2 by Davis, Schwahn and Hart, the court reporter, each of whom testified that it was a true and accurate copy of everything that was said. Plaintiff offered his Exhibit 2 into evidence and it was objected to on behalf of both defendants, Augustine’s, Inc., and the Administrator of Eldridge’s estate. Plaintiff’s counsel stated that he would like to have it read in open court, if there was a favorable ruling “so these items could be ruled on in open Court, as if Mr. Eldridge were here to testify through an interpreter.”

The trial court advised that any admissions against interest contained therein would be admissible, but that the statement could not be read to the jury the same as if Eldridge were testifying. The court took the attitude that such statement could not be read to the jury because defendants would then be denied the right of cross-examination. In the taking of evidence depositions, cross-examination is provided for; but a decedent’s statements against interest are not objectionable because of the lack of opportunity to cross-examine, because the lack of opportunity to cross-examine is deprived of significance by the incongruity of the party’s objecting to his own statement on the ground that he was not subject to cross-examination by himself at the time. Wigmore on Evidence, 3rd ed 1940, § 1048, Cleary, E. W. Handbook of Illinois Evidence (2d ed 1963), p 280, § 17.11.

The court sustained the objection as to both defendants. Plaintiff then offered his Exhibit 2A, which was a modified version of Exhibit 2, in which there had been deleted certain questions and answers and statements as prepared by defense counsel. Objections made on behalf of both defendants were sustained as to Plaintiff’s Exhibit 2A.

Plaintiff then made offers of proof of the testimony of Davis and Schwahn to the effect that Eldridge made the statements contained in Plaintiff’s Exhibit 2A, as against either or both of defendants. The remainder of the proceedings were before the jury.

The admission of certain photographic evidence was then stipulated to and plaintiff called two of the three Augustine brothers as to physical facts and Mary Hudson, plaintiff’s mother, who testified as to the occurrences of that day leading up to her and plaintiff being at Augustine’s, her work there after placing plaintiff near the pizza oven, under the surveillance of her mother, Martha Augustine, that she did not see plaintiff leave the kitchen and her discovery of plaintiff’s injury when Eldridge carried plaintiff into the kitchen. Martha Augustine testified that she had undertaken to watch plaintiff, that she did not know how much time had elapsed, and that she discovered plaintiff was not in the kitchen only when Eldridge was carrying him through the dishwashing room into the kitchen.

Plaintiff, who was at the time of the trial approximately 7 years old, was then called on his own behalf. Objection to his testimony as against Eldridge’s estate was made as being incompetent under section 2 of the Evidence Act, and the objection was sustained. He testified, that he recalled the day of the accident, was standing in front of the truck when he saw it, that the truck was coming toward him, that he never heard a horn and that Eldridge got out of the truck after it hit him; that he screamed before he got hurt but Eldridge did not stop and ran over him; that he was somewhere over to the left of the door. In answer to the question, “What was the first thing that hit you, if you know?” plaintiff answered, “It was the back end. No, I think it was the front part.” The next question was, “You don’t know though?” to which plaintiff answered, “No, I just think the front fender.”

Medical bills, the nature, extent and permanence of plaintiff’s injuries were stipulated.

Plaintiff than called Paul Augustine who testified concerning getting his sister Mary Hudson and plaintiff, that plaintiff was to be with Martha Augustine in a part of the kitchen; he further testified that he was present in the kitchen a few days after the accident when Eldridge told Schwahn how the accident occurred. Objection was made as to Paul testifying as to what was said, and sustained. Offer of proof outside the presence of the jury was then made that if Paul were allowed to testify that he would testify to those matters and things contained in plaintiff’s Exhibit 2A.

Upon plaintiff’s resting each defendant moved for a directed verdict; both motions were granted; plaintiff’s post-trial motion was heard and overruled and judgment for defendants was entered.

Plaintiff contends the statement of Eldridge was an admission against interest, and amounts to a waiver of proof, and that its admission is not subject to it being made as part of the res gestae, and would make a prima facie case, and that it should not be denied being admitted into evidence, because the opposing party is denied the right of cross-examination, since a party has no right to cross-examine himself. He has sought to have the entire statement read into evidence, as if it were an evidence deposition. Since the statement was taken without stipulation, court order, or notice, and the defense was thus deprived of the right of cross-examination, the statement does not meet the statutory requirements, Ill Rev Stats, c 110, sections 58, 101.19-20, or a deposition. The statement can only be treated as one voluntarily made by one who was subsequently made a party. The fact that Eldridge as a party, had he been living at the time of trial, could have been called as an adverse witness under section 60 of the Civil Practice Act, and the defense could not have cross-examined him, is of no persuasive effect, since under section 60, the defense would have had a right to call him to explain any statements made.

The parties here have argued the technical differences involved in true admissions, quasi-admissions, declarations, and when a voluntary statement is an admission against interest. Wigmore on Evidence, 3rd ed 1940, at § 1058, makes the distinction between the true admission and the quasi-admission. As there pointed out, the true admission is a formal act, done in the course of judicial proceedings, which waives or disposes with the production of evidence, by conceding for the purposes of litigation that the proposition of fact alleged by the opponent is trae; it concerns a method of escaping from the necessity of offering any evidence at all, and is a waiver relieving the opposing party from the need of any evidence, and is conclusive in the sense that it formally waives all right to deny, for the purposes of the trial; it removes the proposition in question from the field of disputed issues. The quasi-admission is extra judicial in character, an item of evidence, and not in any sense final or conclusive.

Evidence of a statement by the defendant, or attributable to him, is admissible in behalf of the plaintiff where it tends to establish the defendant’s liability or prove his responsibility for the wrongful act complained of, Norling v. Carr, 211 F2d 897; Susemiehl v. Red River Lumber Co., 306 Ill App 430, 28 NE2d 743. And a statement is admissible which tends to show that defendant considered himself liable for negligence, Adamsen v. Magnelia, 280 Ill App 418. As is said in Wigmore, “The opponent, whose utterance it is, may none the less proceed with his proof in denial of its correctness; it is merely an inconsistency which discredits, in a greater or less degree, his present claim and his other evidence.” See also Supreme Court Rule 20, section 101.-20, Civil Practice Act. Such admission is likewise subject to the explanation of the party who has made it. Haskel v. Siegmund, 28 Ill2d 1, 170 NE2d 393.

Here no one contends the statements of Eldridge are a part of the res gestae, and as a result we see no necessity of labeling the exhibits as admissions or declarations; Eldridge did not sign the transcript, so that at the most it must be viewed as an oral statement. Assuming that the statement met the requirements of being against interest, of sufficient reliance and materiality and of sufficient definiteness and certainty, that it was inadmissible as against the defendant Augustine’s, Inc., is well settled under the Illinois cases. In Fortney v. Hotel Rancroft, Inc., 5 Ill App2d 327, 125 NE2d 544, at 333, the court said:

“It is the settled rule in Illinois that an admission by an agent or employee, after the transaction is completed, or the incident occurred, which cannot be considered a part of the res gestae, is incompetent.”

Our Supreme Court in Baier v. Selke, 211 Ill 512, 71 NE 1074, at 518, said:

“A declaration made concurrently with the acts and constituting a part of the res gestae is admissible in evidence, but where it is a mere narration in regard to a transaction already passed it does not bind the principal and cannot be proved.”

Here the contents of the statement are the sole evidence offered by plaintiff as to the conduct of Eldridge at the time of the occurrence, with exception of the testimony of plaintiff which is incompetent as to Eldridge’s estate by reason of section 2 of the Evidence Act, but competent as against the defendant Augustine’s, Inc. Plaintiff is dependent on it for his prima facie case of negligence, as against Eldridge’s estate, and has attempted to introduce the entire statement, or its modified version, into evidence, and has not attempted to avail himself of the opportunity of making proof of only such parts of the statement as he considers admissions of negligent conduct.

Evidence of oral declarations and admissions and conduct of a decedent cannot ordinarily be specifically contradicted, and as said in ILP, Evidence, § 196, it is generally regarded with suspicion as evidence of the weakest kind to which the courts lend a very unwilling ear, and is carefully scrutinized in connection with the circumstances under which such admissions were made, as well as considered with all of the other evidence in the case. (See Illinois cases cited.) But an admission of a party, to be used against him must be unequivocal, and positive and definite in character. Here plaintiff’s Exhibit 2 shows on its face the difficulty in communication between Eldridge and Schwahn, at the time it was taken. Schwahn on various occasions answered the questions himself, and admitted the difficulty of communication. Although Schwahn had worked with Eldridge at Augustine’s the record does not show that either directed the other. The inherent difficulty under which the statement was obtained is evident. Our Legislature had recognized the difficulty in communcation with a deaf-mute or witness, and provided by section 48.01, ch 51, Ill Rev Stats:

“Whenever any deaf-mute person is a party to any legal proceeding of any nature, or a witness therein, the court upon the request of any party shall appoint a qualified interpreter of the deaf-mute sign language to interpret the proceedings to and the testimony of such deaf-mute person.”

Under this section the court would have the opportunity to pass on the qualifications of the interpreter. Schwahn stated that he did not claim to be “a qualified interpreter of the deaf-mute sign language” but stated that he was only an interpreter “for him” and had no schooling in deaf-mute sign language, but that Eldridge had taught him.

A reading of the entire statement convinces us that without further explanation, it does not meet the requirements of being unequivocal and positive and definite in character. It is not exactly what Eldridge said, but only what Schwahn understood Eldridge said, and Schwahn concedes that in some instances Eldridge did not understand the questions propounded. To be competent as an admission any statement should possess the same degree of certainty as would be required in the evidence it represents. ILP, Evidence, § 131, CJS, Evidence, § 277.

“The question whether admissions or declarations are admissible in evidence is one to be determined by the court. The admission or rejection of the proffered evidence should be determined with a view to all the facts and circumstances of the case and the rules of law governing the admissibility of this kind of evidence. In a particular case, the admission of a statement in evidence may lie within the sound discretion of the court.” Am Jur, Evidence, § 550.

Considering the content of the statement, the circumstances of its being taken, and the fact that there would be no opportunity for Eldridge to be called to explain the statement, and the fact that it was not being offered for impeachment but as substantive evidence, we cannot say that there was an abuse of discretion in denying the admission of plaintiff’s Exhibits 2 and 2A. Without this evidence plaintiff made no case against the defendant Administrator, and the granting of that defendant’s motion, and judgment should be affirmed.

Excluding the proffered statement, the competent evidence as to the defendant Augustine’s, Inc., discloses that on the date of plaintiff’s injury, Eldridge, a deaf-mute, was acting in the course of his employment, the circumstances of plaintiff’s being on the premises before his escape from the surveillance of his grandmother, the condition of the vehicle and its equipment, the age of plaintiff as being 4% years, and that plaintiff was never permitted in the area in which he was injured alone. In addition, plaintiff has testified that when he first saw Eldridge in the truck he was standing in front of the truck in an area to the left of the back door, that the truck was coming toward him, that he did not hear a horn, that Eldridge made no motion to him, that plaintiff screamed before he was hit, that he did not know what part of the truck hit him, but thought the front fender of the truck hit him. Plaintiff’s medical bills, injuries and their permanence was stipulated to by the parties. Plaintiff obviously did not recall whether the truck was going forward or was backing when he was struck; and it is rather obvious from his testimony that he has no independent recollection of the occurrence, and we find that plaintiff’s testimony has no probative value.

Defendants have urged that the status of plaintiff was that of an invitee who had exceeded the scope of his invitation to become a licensee or social guest, to whom the only duty is not to inflict injury willfully and wantonly, citing Jones v. Schmidt, 349 Ill App 336, 110 NE2d 688, Martin v. Cline, 15 Ill App2d 269, 145 NE2d 505, and the annotation, Child-Invitee or Licensee, 44 ALR2d 1319, 1321-1326 and 1337-1339, which support such contention. Plaintiff has failed to argue this point in his brief, and by his reply contends that such theory is applicable only in attractive nuisance cases where the condition of the premises is involved, and that plaintiff’s theory of recovery is premised upon the active negligent conduct of the decedent in striking plaintiff with the vehicle. The evidence, however, does not include such active negligent conduct as would justify the case going to the jury, and as a result of insufficient evidence of negligence to make a submissible case, we do not reach the question of defendant’s duty, or degree of care required.

Plaintiff has alleged that permitting a deaf-mute to operate a vehicle is negligence on the part of his employer. Here the vehicle was being driven on a portion of defendant’s premises, which was not in use by the public on which at that time neither defendant nor Eldridge had any reason to anticipate that children would be present. While permitting a deaf employee to drive, under some circumstances might be sufficient evidence of negligence to present a question of fact for a jury, we cannot say, under the facts in this case, that it is such evidence. Applying the test of foreseeability of injury to the competent evidence presented, we do not believe that reasonable men could conclude that Eldridge or defendant could or should have foreseen that plaintiff might be injured in this area by Eldridge, nor that either he nor the defendant corporation by its agents should have foreseen that this minor might escape from the surveillance of his grandmother and mother, and be found in an area where his very presence was a danger to his person.

Accordingly, the judgments in favor of both the Defendant Administrator of the Estate of Jewell Eldridge, deceased, and the Defendant Augustine’s, Inc. are affirmed.

Affirmed.

MORAN and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: MORAN, J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kelly Payton, Jr., Defendant-Appellant.
    Gen. No. 65-95.
    Fifth District.
    June 29, 1966.

      Kassly, Weihl, Carr & Bone, of East St. Louis (Donald E. Weihl, of counsel), for appellant.
    John M. Karns, Jr., State’s Attorney of St. Clair County, of Belleville (John F. O’Connell, Assistant State’s Attorney, of counsel), for appellee.
   MORAN, J.

Defendant appeals from a conviction of rape in the Circuit Court of St. Clair County, Illinois.

He contends that the evidence does not support a finding of guilt beyond a reasonable doubt, that the court erred in allowing rebuttal evidence alleged to be hearsay, and that the People’s rebuttal argument was prejudicial.

The complaining witness, Mrs. Jessie Beard, testified that on April 15, 1963, she attended a dance with her husband. At the conclusion of the dance, she and some of her girl companions visited two of the neighborhood taverns in the area, the last of which was one block from her home. After leaving her companions at about 2:00 a. m., she walked toward her home. Soon thereafter she was attacked by a man whom she later identified at a police lineup as the appellant, Kelly Payton, Jr. After an initial struggle in which the appellant seized a gun carried by Mrs. Beard, he forced her at gunpoint to walk to the Intercoastal Paint Company plant where he raped her twice. Then after being alerted by a passerby, he forced her to walk to a set of railroad tracks near the plant. After forcing her to lay her head on the track, he made her get up and walk down the track, firing a shot after her. She walked to a service station close to the tracks and told the night manager that she had been raped and that he should call the police. He testified that her clothes were torn and dirty and that her face was bleeding. She arrived at the station at about 4:00 a. m.

After the police arrived, Mrs. Beard showed them the scene of the crime. The police found a black wallet containing the appellant’s identification. It was not weathered, dirty, or wet with dew. Thereupon Mrs. Beard was taken to a hospital, examined, and treated. On April 22, 1963, the appellant was arrested. Mrs. Beard identified him in a lineup shortly thereafter.

At the trial, four alibi witnesses testified on behalf of the appellant. However, after the testimony of two of the witnesses, Moore and Murdock, who testified that they were with the appellant from 2:00 a. m. to 3:45 a. m., Mrs. Beard’s cousin, a Mrs. Lodie Mae Swift, testified that she had overheard a conversation between these two witnesses before they testified. She said she heard Moore say to Murdock that “he was going to get paid to come up here and lie; he was going to have to get paid to come up here and lie.” The appellant’s objection to this testimony on the ground that it was hearsay was overruled. Murdock returned to the stand the following day and denied the statement. Moore failed to appear although contacted by the defense attorney and the State’s Attorney’s office.

The jury returned a verdict of guilty and the court sentenced the appellant to a term of not less than five nor more than twenty years in the state penitentiary.

Appellant points out numerous inconsistencies in the testimony of Mrs. Beard and other prosecution witnesses. Mr. Beard testified the dance was over at about 1:30 a. m., and Mrs. Beard testified the dance was over about 10:00 p. m. Mr. Beard testified that a white gold ring was stolen from his wife; Mrs. Beard testified that a yellow gold ring was stolen. Mrs. Beard testified that there were four or five men in the lineup; the officer in charge testified that there were only three men. Mrs. Beard testified that the gun was in her bosom and that she did not attempt to use it at the place where she was first accosted; that she did attempt to use the gun when they got to a field. The policeman, to whom she reported the incident, testified that she told him the gun was in her purse and that she attempted to use it when she was first accosted under a street light.

The appellant then relies upon People v. Weisberg, 396 Ill 412, 71 NE2d 671, in which the court held that:

We have held,' however, that evidence will be closely scrutinized where it is conflicting, if incompetent evidence creeps in (People v. Rogers, 348 Ill 322, 180 NE 856); or where there is misconduct upon the part of the prosecuting attorney (People v. McLaughlin, 337 Ill 259, 169 NE 206); or if there are other circumstances during the trial of the case which might have the effect of diverting the jury from considering the competent evidence (People v. Gordon, 344 Ill 422, 176 NE 722).

The appellant’s theory is, therefore, that even though the weight of the evidence is for the jury to determine, its determination is not final where incompetent evidence is admitted or where improper argument was used. A final determination of this issue must depend upon an analysis of the other issues, for the inconsistencies noted are not by themselves sufficient for reversal.

Lodie Mae Swift, a cousin of the complainant, testified that she was in the court every day since the trial started. She was in the courtroom “this morning” when Arthur Moore testified and was in court when the man immediately before him testified; that she did not know them before; that she heard their testimony “this morning.” She testified that when the court recessed she left the courtroom to eat and when she returned she sat “out there.” The two men were leaving when she went “out there.” When she came to the court that morning she sat on a chair “and then immediately people started coming back there and these two fellows was just as you come downstairs on the two chairs down on the end; the last one who testified, he whispered to the other one, this was before they had testified in the courtroom. They were sitting there. There was about three of them. I overheard a conversation between two of them. The man who did the talking was the man who testified last. He says to the other guy that he was going to get paid to come up here and lie; he was going to have to get paid to come up here and lie. That is what was said by the last man who testified and the other man is the first man who testified.”

Payton’s counsel: “I will object on the basis of hearsay. We have no opportunity of cross-examination on this; the party isn’t a party to this lawsuit or trial. What this witness might quote from other witnesses as saying certainly is invading the hearsay rule.” This objection was overruled.

On cross-examination Lodie Mae Swift said they weren’t whispering and she heard them say this as she walked by.

Frederick Murdock was recalled by the defendant and testified that he was outside the courtroom in the corridor with Arthur Moore and Carolyn Washington. He stated that Arthur Moore did not say anything to him about his testimony’s going to be a lie, but he did say, “I am not going to get paid for the time I lost today but it was for a worthy cause.” The record discloses that defense counsel contacted Moore at his place of employment in St. Louis, Missouri, but was unable to get him to return to the stand.

The appellant argues that it was reversible error to admit the testimony of Lodie Mae Swift because it was hearsay; and that, since the two defense witnesses were important in that they established an alibi for the appellant for the time during which the crime was supposed to have taken place, the admission of this hearsay testimony was highly prejudicial and constituted reversible error. Appellant further urges that even though this evidence might be considered impeaching evidence as to the bias or corruption of the two witnesses who testified, it was still inadmissible because no proper foundation had been laid for its admission.

Generally, testimony to a conversation between third parties is hearsay and is incompetent on the objection by the opposite party, especially where the conversation occurred out of his presence, unless it is offered by way of impeachment. Callaghan’s Illinois Evidence, Volume 5, pp 222-224. Jones v. Cline, 84 Ill App 428, involved a claim against an estate. Appellant urged that certain conversations which took place between two witnesses in the absence of appellant were improperly admitted into evidence. One witness had said to the other witness that the deceased did not leave anything when he died and made other statements concerning the financial condition of the deceased in his lifetime and made statements concerning the condition of his estate after his death. The Appellate Court held the conversations inadmissible, saying at page 429:

As the doctor was not a party to the record, nor was shown to have been interested in the decedent’s estate, it was improper to admit in evidence over the objections of the appellant, such conversations. The only way that statements made by the witness, Dr. Jones, could be properly admitted as evidence against the appellant was by way of impeachment, and after the proper foundation therefor had been laid. This, the record shows, was not done, hence the evidence was improperly admitted.

However, appellee in the case at bar argues that Mrs. Swift’s testimony was not hearsay but was admissible for impeachment purposes to show that the state of mind of Arthur Moore prior to testifying was corrupt. Evidence offered by way of impeachment has been held admissible as an exception to the hearsay rule. Callaghan’s Illinois Evidence, Volume 5, page 224.

In People v. Lechner, 60 Ill App2d 472, 208 NE2d 898 (a recent case decided by this court) we did hold this type of evidence admissible to impeach a witness’s credibility. In that case defendant’s wife who testified on his behalf had phoned her mother, the complaining witness, prior to the trial. She was not interrogated regarding the telephone call on direct examination, but was asked on cross-examination: “Did you in any such conversation at that time say to your mother that if your mother didn’t drop the case that Joe would make you say that your mother was crazy?” She answered, “No sir.” In rebuttal, the People called a witness who testified that he had heard the phone call between the wife of the defendant and the complaining witness and that the wife had made the statement that she denied making. We held that this rebuttal testimony was admissible under these circumstances to impeach the witness’s credibility.

In the present case, if Moore had been asked first whether he had made the statement that Lodie Mae Swift had said he had made and he then denied making that statement, Lodie Mae Swift’s testimony would have been admissible to impeach his credibility. However, the State contends that since defendant’s objection was based on Lodie Mae Swift’s testimony being hearsay and since defendant did not make the objection that no proper foundation was laid for Lodie Mae Swift’s rebuttal testimony, defendant has waived this objection so that this error cannot be raised by defendant in a court of review.

Before a witness may be impeached by a prior statement, a proper foundation must be laid in order to alert the witness, avoid unfair surprise, and to give the witness a chance to explain. The witness must first be asked as to the time, place and persons involved in the alleged conversation; secondly, he must be asked whether he made a certain contrary statement at that time. Here neither of the requirements were satisfied. People v. Rainford, 58 Ill App2d 312, 208 NE2d 314, and the cases cited therein. When the impeaching witness is produced, the proper course is simply to ask him whether or not the witness to be impeached made the statement in regard to which he has been questioned at that time and place mentioned. It is improper to ask the impeaching witness to relate the whole conversation. Elgin, J. & E. Ry. Co. v. Lawlor, 132 Ill App 280. A proper foundation must be laid for subsequent impeachment for bias just as when impeaching by a prior inconsistent statement. People v. Rainford, supra, McCormick on Evidence, page 84.

In the present case there was no attempt by the state to lay a foundation for Lodie Mae Swift’s testimony. She was asked to relate a conversation between two people held out of the presence of the accused and with no opportunity for him to cross-examine. Since none of the preliminary questions to qualify this evidence as impeaching evidence were asked, defense counsel would have no way of knowing that this evidence was offered as impeachment evidence, absent a statement by the prosecutor that this was the purpose of Lodie Mae Swift’s testimony.

Under the circumstances, we hold that the defendant is not precluded from questioning the lack of foundation for this evidence even though he did not make this particular objection in the trial court. Smith Hurd, chapter 38, par 121-9; People v. Bradley, 30 Ill 2d 597, 198 NE2d 809.

The appellant also argues that the People’s rebuttal argument was highly prejudicial and improper. Some of the things said in the rebuttal argument were:

Now remember that in this year of 1963 a colored woman has the same dignity and is entitled to the same respect under the law as any of you. If some of you still don’t feel that remember that it is just a short distance from 13th and Walnut to east on State Street. It is just a short drive up to Belle-ville and if you don’t stop a rapist in his own area, he is going to get to another area.

If this beast isn’t sent away, God help East St. Louis and St. Clair County.

It could only be some abnormal feeling inside you which would say, we are not going to send anybody to the penitentiary. If you have that feeling — anybody — you are guilty of a crime yourself, and you know it, because you have taken a solemn oath that you are going to follow the law, and we have to have the law followed here.

Do your duty. If you do your duty now you can say your prayers at night and mean them. If you don’t do your duty now, in my opinion you are committing as great a crime as this beast did.

These remarks by the State’s Attorney were highly inflammatory and violated the defendant’s right to a fair trial. The language of our Supreme Court in The People v. Anderson, 406 Ill 585, 94 NE2d 429, at pp 592, 593 is as follows:

. . . Much is said about the conduct of the State’s Attorney otherwise, including his violation of the rule that a State’s Attorney arguing to the jury must not state his own opinion of the guilt of the defendant.

The very nature of cases of this kind demands the exercise of extreme care in preventing improper evidence and prejudicial argument which might deprive a defendant of that fair and impartial trial to which everyone, both guilty and innocent, is entitled. Under the state of the record here we are constrained to grant a new trial, for the reason we are of the opinion the defendant has not had that fair and impartial trial to which he is entitled.

In People v. Lettrich, 413 Ill 172, 108 NE2d 488, the court said at page 181:

. . . The jury must try the case according to the law of the evidence, and what the people of the State may want, what other jurors have done before, and what the State’s Attorney thinks about the guilt of the defendant are clearly irrelevant and incompetent.

For the foregoing reasons the conviction of the appellant is reversed and this case is remanded to the Circuit Court of St. Clair County for a new trial.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: PRESIDING JUSTICE GOLDENHERSH.

text:
    People of the State of Illinois, Defendant in Error, v. Carl Bellis, Plaintiff in Error.
    Gen. No. 66-10.
    Fifth District.
    June 29, 1966.
    Curt C. Lindauer, Jr., of Belleville, for appellant; John M. Earns, Jr., State’s Attorney of St. Clair County, of Belleville (Charles E. Hamilton, Special Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sherman Steward, Defendant-Appellant.
    Gen. No. 64-66.
    Fifth District.
    June 30, 1966.

      Richard E. Boyle, of East St. Louis, for appellant; John M. Earns, Jr., State’s Attorney of St. Clair County, of Belleville (John F. O’Connell, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: GOLDENHERSH, P. J.

text:
    Cova Robbins, Plaintiff-Appellee, Cross Appellant, v. Howard Campbell, Jr., Defendant, Cross Appellee, and Edgar Robbins, Defendant-Appellant.
    Gen. No. 64-112.
    Fifth District.
    July 6, 1966.

      Pope and Driemeyer, of East St. Louis, for appellant.
    Richard A. Cagle, of Alton, for appellee.
   GOLDENHERSH, P. J.

Plaintiff, Cova Robbins, filed suit in the Circuit Court of Madison County seeking to recover damages for injuries suffered while riding in an automobile driven by defendant, Edgar Robbins, which collided with an automobile driven by defendant, Howard Campbell, Jr. The case was tried to a jury and resulted in a verdict in favor of the plaintiff and against defendant, Edgar Robbins, in the amount of $3,500, and a verdict in favor of the defendant, Howard Campbell, Jr., and against plaintiff. Both plaintiff and defendant, Edgar Robbins, filed post-trial motions, the motions were denied, and final judgments were entered on the verdicts.

Defendant, Edgar Robbins, appeals from the judgment, assigning as error the denial of his motions for directed verdict, and his post-trial motion praying judgment notwithstanding the verdict, and in the alternative, for a new trial. Plaintiff cross appeals as to both defendants, contending that the court erred in denying her post-trial motion for judgment notwithstanding the verdict against defendant, Howard Campbell, Jr., on the issue of liability, that the verdict is inadequate in view of the severity and permanence of plaintiff’s injuries, and the court erroneously denied that part of plaintiff’s post-trial motion which seeks a new trial against both defendants on the issue of damages only.

Plaintiff’s complaint, as amended, contains three counts: Count I charges defendant, Howard Campbell, Jr., with negligence, Count II charges defendant Edgar Robbins, with wilful and wanton misconduct, and Count HI alleges that plaintiff was a fare paying passenger in the automobile driven by defendant, Edgar Robbins, and charges him with various acts of negligence. At the close of the plaintiff’s case, plaintiff dismissed Count II, and the case went to the jury on Counts I and III.

The collision out of which this suit arises occurred at the intersection of Tenth Street and Broadway in Mt. Vernon, Illinois. Tenth Street runs north and south and is six lanes wide, with two parking lanes, two southbound and two northbound travel lanes. Broadway extends in an easterly and westerly direction, is three lanes wide, and traffic is restricted to one way travel in an easterly direction.

The testimony shows that defendant, Edgar Robbins, is plaintiff’s son. Plaintiff, defendant, Edgar Robbins, his wife, and his 13-year-old son had travelled in defendant’s automobile from East Alton, Illinois, to Hardinsburg, Kentucky, and the collision occurred as they were homeward bound. The trip to Kentucky was for the purpose of visiting plaintiff’s son, who resided there. This son’s home and furniture had recently been destroyed by fire and defendant had rented a trailer in which to transport some furniture which plaintiff gave to her son. The trailer was being towed by defendant’s car at the time of the collision.

On the day of the occurrence plaintiff, defendant, Edgar Robbins, his wife and son had left Hardinsburg at 8:00 a. m. and about 1:30 p. m. were traveling in a northerly direction on Tenth Street. Defendant, Edgar Robbins, was driving, his son sat in the front seat, plaintiff and defendant’s wife were in the back seat. At that time defendant, Howard Campbell, Jr., was driving south on Tenth Street and made a left turn into Broadway. There are electric traffic control signals at the intersection. As to northbound traffic the signal has the usual red, yellow and green lights. For southbound traffic, in addition to the three colored signals, there is a green arrow which permits left turns into Broadway.

The automobiles driven by the defendants collided, and photographs in evidence show the left front of each car to be damaged.

Citing Grubb v. Illinois Terminal Co., 366 Ill 330, 8 NE2d 934, defendant, Edgar Robbins, contends that the evidence shows plaintiff to have been engaged with him in a joint enterprise, and therefore, she cannot recover from him on a negligence theory. Absent evidence of a business enterprise, the rule enunciated in Grubb v. Illinois Terminal does not apply, Smith v. Bishop, 32 Ill2d 380, 205 NE2d 461. As to defendant’s contention that plaintiff was a guest, the testimony shows that plaintiff paid defendant $20, which defendant testified, was to pay her part of the expenses for gasoline and meals. The testimony shows that the distance driven on the round trip from East Alton to Hardinsburg was 560 miles, and that no overnight stops were made. Under the circumstances, the payment of $20 appears to be sufficient to entitle plaintiff to the status of a passenger, rather than a guest. 8 Am Jur2d 47, McNanna v. Gach, 51 Ill App2d 276, 201 NE2d 191.

Defendant, Edgar Robbins, contends that the court erred in denying his motion for a directed verdict at the close of plaintiff’s case. It is plaintiff’s position that the evidence at the close of plaintiff’s case was sufficient to require submission of the case to the jury, and further, assuming the evidence to be insufficient, by further participation in the trial, defendant waived the right to question the correctness of the court’s ruling. Plaintiff contends that the issue presented on review, is the sufficiency of the evidence, at the close of all the evidence, and not at the close of plaintiff’s case. The consideration of these issues requires a brief review of plaintiff’s evidence.

Defendant, Edgar Robbins, called under section 60 of the Practice Act, testified that when he approached the intersection the signal light was “on caution,” that there was a car stopped at the intersection, that when the light changed to green, defendant drove out into the intersection, that he saw defendant, Howard Campbell, Jr.’s car heading south but with its wheels “sort of cut in an easterly direction,” that immediately thereafter, defendant Campbell’s car “raised right up and made a left hand turn right in front of me.”

Defendant, Howard Campbell, Jr., called under section 60, testified that he was familiar with the intersection, when the green arrow is on for left-hand turns into Broadway the red light is on for northbound traffic on Tenth Street, that the last time he saw the green arrow was just prior to his entering the intersection.

Dennis Robbins, son of defendant, Edgar Robbins, called by plaintiff, testified that when defendant, Edgar Robbins, approached the intersection, the light was red and his father stopped his car. He stated that the light changed from red to yellow to green, that when his father started into the intersection, the light was green. On cross-examination, Dennis was asked about his pretrial deposition, and thereupon testified that when defendant, Robbins, moved his car forward, the light was yellow.

There was sufficient evidence at the close of plaintiff’s case to submit to the jury the issue of defendant, Robbins, negligence, Pfister v. West, 53 Ill App2d 305, 203 NE2d 35. Having reached this conclusion, we do not reach the issue of waiver.

As to plaintiff’s motion for judgment against defendant, Campbell, notwithstanding the verdict, the evidence presented an issue of fact for the jury as to the negligence of this defendant, the trial court properly denied plaintiff’s motion and the judgment will not be disturbed.

There remains for consideration plaintiff’s contention that the verdict is inadequate. Plaintiff proved medical expenses of $855.70. There is no evidence of loss of earnings. She suffered a simple fracture of the elbow joint with some limitation of motion.

The question of damages is peculiarly one of fact for the jury. Plaintiff makes no complaint as to instructions or the admission or rejection of evidence. Under the circumstances, we cannot say that the verdict is patently inadequate or grossly unfair or unreasonable. Corsello v. Warren, 51 Ill App2d 367, 201 NE2d 155.

For the reasons herein set forth, the judgments of the Circuit Court of Madison County are affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jessie Sumner, Defendant-Appellant.
    Gen. No. 10,655.
    Fourth District.
    June 30, 1966.

      F. Daniel Welsch, of Danville, for appellant.

      John P. O’Rourke, State’s Attorney of Vermilion County, of Danville, and John R. Dean, Special Assistant State’s Attorney, for appellee.
   SMITH, J.

Defendant was found guilty by a jury of the murder of Herschel Williams on an indictment in one count charging death by striking with an unknown blunt instrument and in another count with death by cutting the throat with a razor. Post-trial motions were denied and a sentence of 35-75 years was imposed. This appeal followed.

At first blush the circumstances in this record would seem to be fictional rather than factual. Williams’ death is placed on March 31, 1963. Some fourteen months later, on June 1, 1964, his dismembered body was found in a 55-gallon oil barrel partially embedded in cement. The barrel was reclaimed on that day from the city dump of a neighboring city. There were no eyewitnesses to the tragedy. The defendant did not testify. The conviction is woven from circumstantial evidence and in the weaving, the defendant charges the trial court with reversible error. The defendant contends that the indictment is fatally defective; that the evidence does not establish guilt beyond a reasonable doubt; and that intervening errors require a new trial.

Since this appeal was taken, the Supreme Court has effectively nullified defendant’s contention that the indictment failed to adequately state time and place. People v. Blanchett, 33 Ill2d 527, 212 NE2d 97. Without reciting the evidence in detail at this point, it is our opinion that the evidence adduced is sufficient to establish guilt beyond a reasonable doubt. We turn to the errors alleged which it is said requires a new trial.

The principle controversy centers around the refusal of the trial court to require the State to make available to the defendant for impeachment purposes statements of State witnesses made to agents of the Federal Bureau of Investigation and the refusal of the trial court to require the State’s Attorney to indicate whether he had copies of such reports in his file. In so stating the issues we do not imply that this was arbitrarily or capriciously done. The record is quite to the contrary— an observation, however, that does not preclude error, if error was actually committed. For reasons not disclosed by the record, the F. B. I. was conducting an investigation of this or some other matter and in so doing interviewed numerous witnesses including the defendant and a couple of his former cell mates in the penitentiary. The conversations to which we now refer were reduced to writing, were substantially verbatim reports of such conversations and were contained in the agents’ reports which, at the time of the trial, were in the Springfield office of the F. B. I. The F. B. I. agents were called and testified for the State. With perhaps a single unimportant exception, the names of all witnesses were made available to the defendant and defendant’s counsel interviewed the two cell mates in the penitentiary.

It is apparent that the defense had copies of some statements. It is equally apparent that some were not made available to him. The availability for impeachment purposes of a statement made by a witness for the People or a statement made by a law enforcement officer containing a substantially verbatim account of a conversation between him and a witness for the State is no longer debatable. It has been the subject of much recent litigation and the guidelines are pretty well established. People v. Moses, 11 Ill2d 84, 142 NE2d 1; People v. Wolff, 19 Ill2d 318, 167 NE2d 197; People v. Cole, 30 Ill2d 375, 196 NE2d 691; People v. Wright, 30 Ill2d 519, 198 NE2d 316; People v. Edmunds, 30 Ill2d 538, 198 NE2d 313; People v. Jolliff, 31 Ill2d 462, 202 NE2d 506. These cases establish that where such documents are shown by the evidence to exist, are in the possession of or subject to the control of the prosecutor, and there is no claim of irrelevancy, incompetence, privilege or detriment to the public interest, they must be made available to the defendant for impeachment purposes on demand. Wolff holds that if a claim is made that they contain unrelated matters, they shall first be inspected by the trial judge and the unrelated matters deleted before delivery to the defendant. Edmunds further establishes that a defendant may not be unduly restricted in cross-examination in his search for the existence of and the foundation proof required to trigger production of the documents for impeachment purposes. Failure to comply with these rules may, but does not always, result in a redoing of an otherwise properly done trial.

Undisputed evidence shows that the decedent, Williams, and the defendant were acquainted; that the decedent left his home on the afternoon of March 25, 1963, and was not seen alive again by his wife; that on March 28, defendant went to the city police and asked for protection against Williams who “had been bothering him”; that the body in the barrel was identified as that of Williams through tattoo marks, wallet, watch and fingerprints in the cement in which the hand was embedded; that identity of Williams was admitted by the defendant in closing argument; that defendant purchased two bags of cement or Sakrete on March 21 and it was ticketed to Don’s Barber Shop, the trade name of his shop; that in March 1963, City Service Company sold him two purple and white 55 gallon antifreeze barrels similar to the one found in the city dump; that defendant told the F. B. I. he had purchased two such barrels, one still being at the shop and one had been stolen; that between April 11 and May 9, 1963, defendant hired one Maddox to haul some trash to the dump; one was a brown or black barrel and one was a purple barrel; the purple barrel weighed about 200 pounds, required both Maddox and the defendant to lift it and when asked what was in it, defendant told Maddox “cement”; that the truck mired down in the yard and a couple came with a jeep to pull them out; that the trash was unloaded at a dump near Stamford and the purple barrel rolled down into a gully which was about 10 feet deep; for reasons not shown by the record, the city police, sheriff, and the F. B. I. bulldozed this area and unearthed the barrel with Williams’ body inside; that it could not be determined because of decomposition whether the throat was cut; that X rays disclosed fractures which could have been fatal were the subject alive at the time they occurred; the examining doctor did not preclude other possible causes of death and did not categorically say the fractures did cause death. Photographs of the scene, the barrel and portions of the body were identified, admitted and viewed by the jury.

Witness Myers, a former cell mate, testified that Sumner told him in February of 1964 that he had killed Williams in his barber shop; that Williams had come to get the defendant to go on another job; that an argument ensued; that Williams threatened defendant’s wife and children; that defendant didn’t want any more to do with Williams; that he gave Williams a hair cut and shave, and cut his throat; that witness had talked to the F. B. I. and notes were made of the conversations on two occasions; that at the time of such conversations witness was in solitary confinement; that at the time of the conversations witness was disappointed with Sumner as witness was in solitary because some razors had disappeared and he thought Sumner had taken them; that witness examined the F. B. I. statement and agreed that he had not stated to them anything about trimming around the ears as he had testified on the witness stand; that he had told defendant’s counsel that he didn’t believe the defendant; that he was not threatened or promised any leniency or benefit, but that he was let out of solitary the same day.

Witness Curtis, a former cell mate, also testified substantially to the same things as Myers; that he had seen and read a statement of Myers’ when he was interrogated; that he had said that he had not believed the defendant at first; that he now says that he did; that he is telling the truth now and didn’t when he said he didn’t believe the defendant and that notes were taken of his conversation. Motion by the defendant to produce was denied. Motion to require the State to indicate whether it has copies in the file was also denied.

Witness Maddox talked with the F. B. I. three times. In his first chat with the F. B. I. he denied that he knew the defendant, Jessie Sumner, explaining on the stand that he knew him only as Don. He further stated that he first thought the trash was hauled in December, 1962, or January, but that he was mistaken about that. That he was mistaken is evident from the fact that defendant did not acquire the barrels until March of 1963. One of his statements was made available to the defendant. Motion to produce the others was denied. Motion to require the State to disclose whether it had copies was denied.

F. B. I. agents Woods and Hazen testified to a conversation with the defendant on April 12, 1963; that defendant said that he last saw Williams on March 25, 1963; that Williams came to his shop and wanted the defendant to go on another job with him; that Williams had about $2,000 on him and wanted defendant to go with him, buy a boat and go to South America or Florida and that Williams left in his car and he hadn’t seen him since. Hazen testified to a later conversation with defendant where they discussed the barrels, where defendant was asked who had cut out the top of the barrel and why he hadn’t cut out both tops. Defendant answered that it was a lot of trouble. Hazen then accused the defendant of placing Williams in one of the barrels and defendant denied it. Motions to require production of the statements or to require the State to disclose copies were denied.

It is apparent that the testimony of Maddox, Curtis and Myers is of vital significance. Notwithstanding able cross-examination disclosing inconsistencies and contradictions in their testimony on the stand and in prior statements to defense counsel and others, the jury chose to believe them. Neither the trial court nor this court knows whether further or additional impeachment would be provided by the production of the requested statements. It is not now known whether actual impeachment is nonexistent, a mere drop in the bucket or a deluge. Impeachment is not restricted alone to finding flat contradictions. Its broader scope is aptly stated by Mr. Justice Brennen in Jencks v. United States, 353 US 657, 1 L Ed2d 1103, 77 S Ct 1007, in these words:

“Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.”

Subpoenas duces tecum were not issued. Whether or not the F. B. I. agents could properly unveil their reports does not appear. Whether the State had copies available is unknown. In our opinion, the interests of justice require a resolution of these questions. People v. Cole, 30 Ill2d 375, 196 NE2d 691. This conclusion is the more impelling when we are considering a murder conviction bottomed upon circumstantial evidence coupled with admissions of the defendant. The credibility of the witnesses assumes more than normal stature. Reversal, however, is not required. See People v. Wright, 30 Ill2d 519, 198 NE2d 316. It would be an idle gesture to reverse and remand for a new trial only to find on retrial that we seek the nonavailable or the nonexistent or that which is revealed is of little or no consequence, or comes within the scope of harmless error.

Without benefit of these statements in the record, it is difficult for us to aid the trial court with any degree of specificity. The substantive and procedural aspects of the problem have been extensively discussed in United States v. Hilbrich, 232 F Supp Ill and Campbell v. United States, 365 US 85, 5 L Ed2d 428, 81 S Ct 421, annotation: 5 L Ed2d 1014. It clearly appears from this record that statements were made to F. B. I. agents or to others called by the State as witnesses. Appropriate motions were made by the defense to produce such statements for possible impeachment. As clearly stated in Campbell I and abundantly intimated by our Supreme Court in the cases already cited herein, the responsibility for determining the existence, the availability, the producibility and the relevancy of these statements rests squarely with the trial judge in a nonadversary proceeding. See Campbell I. The function of both prosecution and defense as adversaries fades into insignificance and it becomes their function and their duty to come forward with relevant evidence which will assist the trial judge in properly carrying the burden cast upon him. Accordingly, this cause is remanded to the trial court with directions to initiate and conduct in open court, after notice to all parties, an exploration into the existence, availability, proper producibility and relevancy of these statements. In so doing, he may properly resort to such process and such sanctions as may be reasonably necessary or required to accomplish this purpose. His problem is first to determine what we have and then determine its proper producibility and, if properly producible, its effect on the result of the trial, if any. If it appears that evidence is revealed which might reasonably have affected the verdict or warrants the conclusion that a fair trial was not had, then the trial court shall vacate the judgment and grant a new trial. If the determination of the trial court is otherwise, the court shall make findings of fact to that effect, shall impound such statements and make them a part of the record, shall vacate the judgment and enter a new judgment of conviction and impose a new sentence with appropriate consideration to the time already served under the old sentence.

We have carefully considered the other alleged errors in this record and have concluded they relate to matters not uncommon in a trial of this nature, and did not affect the verdict and do not warrant a new trial.

Remanded with directions.

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


text:
    August Bartulis, Jr., Plaintiff-Appellee, v. Metropolitan Life Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 10,692.
    Fourth District.
    June 30, 1966.

      Gillespie, Burke & Gillespie, of Springfield, for appellant.
    McGrady and Madden, of Gillespie, for appellee.
   SMITH, J.

The defendant insurance company appeals from a judgment imposing liability on them for the cost of hospitalization begun and surgery performed after the termination of a group insurance policy. The injuries giving rise to both were sustained several weeks before such termination and in the interim the plaintiff was treated as an outpatient by his doctor without benefit of hospitalization or surgery. The trial court predicated coverage on the fact that the injuries were received during the time that the policy was in effect notwithstanding that hospital and surgery expense did not occur and were not incurred until after the termination date of the policy. Plaintiff insists that public policy requires this result. Defendant’s position is that the expenses so incurred were not incurred while the policy was in force and, for this reason, are not compensational.

Defendant insurance company issued its group hospitalization and medical expense policy covering owners and employees of Standard Oil Service Stations. Plaintiff was a certificate holder by virtue of being a Standard Oil dealer. He was injured on May 4, 1959, in an automobile accident and while the policy was in full force and effect. He was treated as an outpatient until September 11, 1959, by his own doctor. On that date he entered the hospital and from then until October 11, 1959, incurred the hospital expenses and underwent surgery. In the meantime, however, the trustees who were administering the group insurance plan notified all members of the plan, including plaintiff, that the plan would be terminated July 31, 1959. Certificate holders were given the privilege of converting to an individual policy without medical examination within 31 days after the cancellation date of the group policy. Plaintiff did not avail himself of this privilege. The single issue is whether expenses incurred after termination as a result of injuries sustained prior to termination are within the terms of the contract, or as plaintiff suggests, whether justice and public policy required that liability attach even though the policy does not by its own terms impose it.

The provision as to hospital expense provided:

“. . . . That an;7 Certificateholder while insured for Hospital Expense Insurance hereunder . . . shall have become confined as a patient in a legally constituted hospital upon the recommendation and approval of a physician or surgeon legally licensed to practice medicine, as a result of any injury. . . .”

The provision as to surgical operation coverage reads:

“. . . That any Certificateholder while insured for Surgical Operation Insurance hereunder . . . shall have undergone any surgical operation specified in Section 9 hereof, as a result of any injury. . . .”

It seems crystal clear that the coverage provided was for confinement as a patient in a hospital while the policy was in force and surgery performed while the policy was in force. Neither event occurred during the life of the policy. Neither in such provisions nor elsewhere in the policy is there language suggesting that the policy could or should be read as providing coverage for hospitalization or surgery resulting from injuries sustained while the policy was in force. To so read this policy is to annex to it a coverage neither specifically stated nor reasonably implied. We would observe that section 10 entitled “Benefits after Cessation of Insurance” provided that if a certificate holder is totally disabled as a result of injuries or sickness on the termination date of the policy, the hospitalization and surgery coverages continue, for a period of 31 days. If a female, and pregnancy exists on the termination date of the policy, coverage is extended over a period of 9 months for hospitalization and surgery resulting from such pregnancy. It is thus apparent that this is not only a limited coverage policy, but its post-termination coverage is likewise specifically limited to specific circumstances. Coverage for injuries sustained during the lifetime of the policy with hospitalization or surgery resulting therefrom thereafter is conspicious by its absence. The clear implication is that there was no intention to provide such coverage.

We cannot agree with the plaintiff that liability arose when the injuries were sustained. The coverage was not for expense caused by injuries sustained during the life of the policy, but for the cost of hospitalization and surgery obtained during the life of the policy. We recognize the rule that insurance contracts are construed in favor of the insured, but construction does not degenerate into a perversion of plain language to create an ambiguity where none exists or to father a contract obligation where none is stated or reasonably implied. Miller v. Madison County Mut. Automobile Ins. Co., 46 Ill App2d 413, 197 NE2d 153; Thompson v. Fidelity & Casualty Co. of New York, 16 Ill App2d 159, 148 NE2d 9. Nor does either justice or public policy compel a different result. Such argument is effectively answered in Shelton v. Equitable Life Assur. Society of the United States, 28 Ill App2d 461, 468, 171 NE2d 787, 790, with these words:

“Plaintiff argues in effect that the ninety-day provision should be ignored so that justice can be served. We know of no public policy justification for ignoring the language of a contract in order to impose liability on a defendant insurer for a loss not contemplated by the contract. The ninety-day period provision allows a reasonable time for the manifestation of losses caused by accidental injury. Moreover, defendant contracted to pay only for losses occurring within ninety days after injury.”

Just as loss of a leg occurring more than ninety days after an injury was not covered in that case, neither is hospitalization and surgery obtained after termination of the policy in the case at bar covered. The judgment of the trial court must be and it is reversed.

Reversed.

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


author: TRAPP, P. J.

text:
    In the Matter of the Application of the County Collector for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1961 and Prior Years. Elmwood Properties, Inc., Petitioner-Appellant, v. Harold Ladley, Executor, Respondent-Appellee.
    Gen. No. 10,725.
    Fourth District.
    June 30, 1966.

      Allan L. Blair, of Chicago (Allan L. Blair and Bruce M. Buyer, of counsel), for appellant.
    Phelps, Russell & Boyle, of Carlinville (Edward R. Phelps, of counsel), for appellee.
   TRAPP, P. J.

Petitioner appeals from an order of the Circuit Court denying petitioner’s motion to set aside a redemption from a tax sale made by respondent and denying petitioner’s application for a tax deed.

Della M. Alaubaugh was the owner of certain real estate which was subjected to a tax sale, and petitioner ultimately became the owner of the certificate of purchase. Under the statute the period of redemption would expire August 11, 1965. Della M. Alaubaugh died April 11, 1964, and on July 14, 1965, respondent Harold Ladley, the executor named in the will of the decedent, applied for letters. On August 9, 1965, respondent deposited funds with the County Clerk to redeem the property from the tax sale, and on August 17, 1965, an order was entered appointing respondent as executor.

Petitioner contends that an executor does not have a redeemable interest in a tax sale.

Section 5 of article IX of the Constitution of Illinois of 1870 provides, in part:

“The right of redemption from all sales of real estate for the nonpayment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less than two years from such sales thereof. . .

Petitioner seeks to maintain the position that only the holder of the record title may redeem and seeks, in some way, to equate his status to that of a purchaser without notice. Petitioner would thus deprive a devisee of real estate under a will not yet admitted to probate, and a contract purchaser from a decedent where the contract had not yet been fulfilled, of the right to redeem.

Other than the fact that both are called purchasers, there is no similarity between a purchaser at a tax sale who purchases with full knowledge of the right of redemption, and ordinarily at less than five percent of the value of the property at a premium on his investment up to 24% per year, and a bona fide purchaser without notice, who ordinarily does so at a price approximating the value in the belief that he is becoming the owner. The distinction was sufficiently important to cause the constitutional provision above referred to. It would be an unconscionable public policy that did not give full effect to the liberal intendment of the constitutional provision.

We are not authorized to ignore the constitutional language “and persons interested,” which is added to the word “owners.” In Franzen v. Donichy, 9 Ill2d 382, 137 NE2d 825, where a sale for taxes was held December 30, 1952, a 1935 contract to convey was recorded November 17, 1954, and redemption made on the basis of the contract December 21, 1954, the Supreme Court held there was a sufficient interest to redeem. The court said, p 387:

“. . . While a mere stranger to the property has no right to redeem, it is enough if the person assuming to redeem has some ‘interest’ therein, even though it does not amount to complete ownership. (People v. Hess, 7 Ill2d 192; Houston v. Buer, 117 Ill 324.) Redemptions are looked upon with favor, and unless injury is to result to the purchaser at the sale a liberal construction will be given redemption laws. Mohr v. Sibthorp, 395 Ill 418.”

In re English’s Estate, 24 Ill2d 357, 181 NE2d Ill, concerned the question as to what persons were “interested” within the meaning of §§ 263 and 266 of the Revenue Act of 1939 (Ill Rev Stats, 1959, c 120, pars 744, 747), requiring the tax purchaser to give notice. It is rather obvious that a requirement as to giving notice could fairly be confined to record owners, occupants and interest actually known. There is no attempt here to extend the time for redemption by reason of a failure to give notice. The court in In re English’s Estate did not have before it the question of the effect of an administrator seeking to redeem within the redemption period. Weiner v. Jobst, 22 Ill2d 11, 174 NE2d 561, cited by petitioner, does not concern an executor or administrator. Dixon v. Nefstead, 285 Ill App 463, 2 NE2d 135, was a contest as to title between a trustee named in a will, who was ordered by a circuit court to carry out the trust, and an administrator of an estate. Anderson v. Shepard, 285 Ill 544, 121 NE 215, concerns the constitutionality of an act regarding land title registration in which the court stated that neither an administrator nor an executor, as such, has title to land of the decedent.

In the broadest sense an estate always has an “interest” in real estate owned by a decedent. In the broadest sense also, it is the duty of the personal representative, either as administrator, or as executor, to act for the best interest of the estate. The statutes and the authorities shed considerable light on the nature of this interest. The estate, that is to say, the personal representative, is liable for the taxes. Chap 120, § 509 (Ill Rev Stats) makes the owner of real property on January 1st, liable for the taxes of that year. This becomes a debt of the executor. In re Estate of Carlson, 348 Ill App 464, p 468, 109 NE2d 461. That an estate may be interested in having real estate taxes paid is clear from the Probate Act. § 249 of the Probate Act (Ill Rev Stats, 1961, c 3, § 249) provides:

“When it appears to the probate court that it is for the interest of any estate being administered in that court that the taxes on real estate forming a part of the estate be paid, the court may authorize the executor or administrator of the estate to pay taxes from any moneys on hand.”

The language of this statute in reference to “interest of any estate” is quite broad. It does not refer to interest of the executor or administrator, or heir, or devisee, specifically, but rather to “interest of any estate.” Since an estate as such has no legal interest, it must mean an interest in having the act performed that would be beneficial to someone interested in the estate.

It has been held that the devisees may compel the executor to pay the taxes, although no claim is filed. In re Estate of Carlson, 348 Ill App 464, 109 NE2d 461. As against legatees an executor may deduct taxes paid on real estate, even though there is no court order obtained in accordance with the above statute. In re Estate of Muldoon, 315 Ill App 109, 42 NE2d 306.

Now, if an executor may of his own accord pay real estate taxes, and if an executor may be compelled to pay real estate taxes, and if a court by statute may be authorized to find that it is to the “interest of any estate” that real estate taxes may be paid, how can it be successfully contended that an executor or administrator has no interest whatever in the real estate to which the taxes are subject. Obviously the reason for allowanee of the payment is twofold: first, the taxes may be a debt of the decedent, and second, by the language of § 249 of the Probate Act (c 3, § 249, Ill Rev Stats, 1963), it may be to the interest of the estate in a general sense that the real estate taxes be paid.

Now, if the taxes may lawfully be paid, by what reasoning will the executor be denied the right of redemption? By our statute, application for judgment and sale is made in the month of October, and the sale occurs sometime thereafter. In case of a death in October, an executor might not be able to pay the taxes before the sale date. Can there be some reason for saying that it might be to the interest of the estate to pay the real estate taxes before the tax sale, but that this reason would vanish upon the sale? And if redemption may be made immediately after the sale, what stopping point do we have but the expiration of the statutory period of redemption?

We quite agree with the respondent that it is also the duty of the executor or administrator to prevent waste. We agree that under § 79 of the Probate Act (Ill Rev Stats 1961, c 3, § 79), the executor may act to preserve the estate before his official appointment. This is a matter of judgment for the executor. Whether there will, in fact, be a sale to pay debts, or whether any of the heirs will question the judgment of the executor in making a redemption, is of no concern to the tax purchaser.

The orders of the circuit court will be affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Timothy DeBerry, Defendant-Appellant.
    Gen. No. 49,952.
    First District, Third Division.
    June 2, 1966.

      Kenneth S. Broun, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and George Saméis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Timothy DeBerry and Anthony Monsour were indicted for the crime of armed robbery. Monsour pleaded guilty. DeBerry pleaded not guilty, was found guilty by a jury and after a hearing in mitigation and aggravation was sentenced to 30 to 50 years in the penitentiary. The sentence was to run concurrently with another sentence previously imposed in a different case by another judge.

This appeal is by DeBerry only. He contends that he did not receive a fair trial because of remarks made by the trial court and the exclusion of certain evidence allegedly bearing on the credibility of the only eyewitness to the robbery, Kenneth Vinyard.

Vinyard worked at a gas service station located on the south side of Roosevelt Road in Forest Park, Illinois. On November 28, 1962, at approximately 5:15 a. m., he was measuring the gasoline in the storage tanks in front of the station when a man approached him from a used-car parking lot east of the station. He said he had run out of gas. Vinyard replied he would take care of him as soon as he finished measuring the tank. After completing the job, Vinyard went into the office and the man followed. As Vinyard started to pick up a gas can the man said, “Don’t look around, this is a stickup.” He had a gun in his hand and told Vinyard to go into the back room. In the back room he took currency from Vinyard’s pockets and his coin changer, a total of $61.94. A few seconds after the robbery Vinyard heard an automobile start and saw it make an east turn on Roosevelt Road.

There were 25 fluorescent lights and spotlights outside the station and three big fluorescent lights inside. Vinyard talked to the man face to face when he was first approached, while he was with him outside and when they went in the back room. He saw the gun after he had been told it was a stickup and again while his money was being taken. Vinyard later identified De Berry as the man who robbed him and identified the gun used in the holdup.

Forest Park police officers Richard Triebes and Edward Schulz were cruising in a squad car in an easterly direction on Roosevelt Road just west of the gas station when they saw an automobile, a green 1960 Pontiac with its lights off, make a wide, fast, screeching turn into Roosevelt Road a short distance east of the gas station. After it went a little way its lights were turned on.

The officers were about to chase the car when they saw Vinyard running out of the office. They pulled into the station momentarily, spoke to him briefly and then started in pursuit of the car that had sped away a few seconds before. As they reentered Roosevelt the car was out of sight. They speeded to Harlem Avenue, three blocks east of the service station, and, to the north on Harlem, they saw the four taillights of the Pontiac. There were no other cars on the street. They sped after the Pontiac at 90 miles an hours. It turned right onto a ramp entering the Eisenhower Expressway. The police car followed. Five hundred feet separated the cars as they entered the expressway.

For the first time the officers made known their presence and purpose. They turned on the squad car’s red-flashing lights, sounded its siren and played its spotlights on the car ahead. They saw two men in the car which accelerated as the lights were flashed upon it. At one time the car pulled over to the shoulder of the road and slowed down but then took off again. As the chase continued a gun, paper money, and what looked like a coin changer were thrown from the right side of the fleeing vehicle. When they were about one and a half car lengths behind, one of the officers fired a shotgun blast at the pavement beneath the pursued car; it then came to a stop.

The men were ordered out with their hands up. De Berry emerged from the right-hand side and Monsour from the driver’s side. DeBerry answered the description given by Vinyard and had on the clothing described by him. The men were held at gunpoint until help came from Chicago and Oak Park police. After they were taken into custody the officers searched the expressway and found a .38 caliber snub-nose revolver, two unfired .38 caliber shells, $31.00 in singles, a five-dollar bill and $2.75 in quarters and half dollars. The coin changer was not found.

At the police station Vinyard identified DeBerry as the one who had robbed him. DeBerry refused to make a statement but when asked if he would have used the gun on the attendant he shook his head “no”; and he said that Monsour was not with him at the gas station.

DeBerry did not testify. His only defense was an attempt to discredit Vinyard. To this end he sought to show that at the preliminary hearing Vinyard testified that he felt a steel object in his back and that he said nothing about a gun. His attorney asked each of two witnesses if he recalled what Vinyard’s testimony had been “as far as a gun was concerned.” An objection was made that no proper foundation had been laid for impeachment. The court sustained the objection saying, “That is not the way to prove this kind of a proceeding in a court, and I will not permit this witness to take the place of a court reporter.” The objection was properly sustained but not for the reason given. What a person said on some other occasion contrary to what is said in court may be used for impeachment. The contrary statement may be testified to by anyone who heard it. People v. Smith, 391 Ill 172, 62 NE2d 669 (1945). If the contrary statement was made in a judicial proceeding a court reporter’s testimony based on his notes is the best testimony, but impeachment is not limited to a court reporter. Vinyard’s testimony at the preliminary hearing was not transcribed. The two witnesses who were present at the hearing and who heard him testify were competent to relate what he said. However, a proper foundation had not been laid for their testimony. Vinyard had not been interrogated regarding the nature of his testimony at the preliminary hearing. There had been no intimation while he was being cross-examined that his testimony differed in any way from that at the preliminary hearing and he was not questioned at all about the gun or the object thrust in his back. It is necessary to alert the witness about the proposed impeachment to avoid unfair surprise and in order to give him an opportunity to explain his previous statements. People v. Moses, 11 Ill2d 84, 142 NE2d 1 (1957). This was not done and the proffered testimony was correctly excluded.

The next and major error relied upon for reversal is a series of comments by the trial judge which the defendant asserts prejudiced him. The most serious of these took place during the final argument of his attorney who said that DeBerry “is sitting here for his life and liberty.” In sustaining an objection the court remarked: “He is not sitting here for his life. . . . Counsel knows that this particular offense, under certain circumstances, is probationable.” The defendant’s attorney rejoined: “Well, well, your Honor, that almost takes my breath away” and the court replied, “Takes your breath away ? This not a death penalty case.” This colloquy was unfortunate and the court’s reference to probation was error. The suggestion of leniency or of possible probation, which is within the court’s power to grant in the event a defendant is found guilty, could, in a close case, influence a jury’s verdict. Under the facts of the present case, however, we do not believe the reference to probation could have been a persuasive factor in the finding of guilty. The evidence of the defendant’s guilt was so conclusive that a not guilty verdict would have been a miscarriage of justice.

Additional instances are pointed out of remarks interposed by the court which the defendant complains deprived him of a fair trial. A careful examination of the record discloses that in a number of instances the remarks were induced by the defendant’s counsel who conducted himself in a provocative manner. A guilty person, of course, must have a fair trial and there is not one way to try a defendant who is guilty and a different way to try an innocent defendant. But in each ease an evaluation of the effect upon the jury of a trial court’s interjections must be made in the light of the evidence, the context in which they were made and the circumstances surrounding the trial. While some of the court’s comments in this case would have been better left unsaid, we have considered each one as well as their total impact upon the jury and feel that they were not of such a nature as to prejudice the defendant. The comments made by the court were also tempered by adequate instructions which told the jury that it was not the intention of the court, by anything it said or did, to express an opinion as to the evidence or the defendant’s guilt or innocence.

The defendant received a trial free from prejudicial error and the judgment of the criminal court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.