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    Edward L. Spiezio, Plaintiff-Appellee, v. Commonwealth Edison Company, a Corporation, Defendant-Appellant.
    Gen. No. 51,677.
    First District, First Division.
    February 5, 1968.
    Rehearing denied March 4, 1968.

      Hackbert, Rooks, Pitts, Fullagar & Poust, of Chicago (Harlan L. Hackbert and Jeremiah Marsh, of counsel), for appellant.
    James A. Dooley, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action based on alleged violations of the Structural Work Act (Ill Rev Stats, c 48, §§ 60-69). Plaintiff, an ironworker, fell 40 or 42 feet from a steel column and was seriously injured. He was an employee of Bethlehem Steel Company, then engaged in the erection of an addition to a power plant of defendant, Commonwealth Edison Company. Defendant appeals from a $190,000 verdict and judgment entered against it as owner in charge of work being performed on its premises by Bethlehem Steel Company. The jury answered “Yes” to special interrogatories whether defendant had “charge of the work” and whether plaintiff’s injuries were occasioned by “a wilful violation of the Structural Work Act, or a wilful failure to comply with any of its provisions.”

On appeal, defendant does not challenge the amount of the verdict. Defendant contends (1) there were no violations of any provisions of the statute; (2) defendant was not “in charge of” the work of Bethlehem so as to be guilty of a “wilful violation” of the statute; and (3) defendant asserts prejudicial trial errors and erroneous instructions.

On October 8, 1957, Bethlehem Steel Company was engaged in the erection of structural steel for an additional generating unit to Commonwealth Edison’s power plant between Rockdale and Joliet, Ulinios. Bethlehem was a prime contractor, and the area of the construction project where plaintiff fell was intended to be the boiler and turbine room.

Plaintiff was 42 years old and had worked as an iron-worker since 1941. On the afternoon of October 8, he was assigned to work as a “connector.” The work of a connector is to line up the bolt holes in a horizontal beam with the bolt holes in the vertical column with a spud wrench and to insert and tighten enough bolts to hold the beam in place until the “bolter-upper” crew can place and tighten the remainder of the bolts to be used. Each piece of structural steel is fabricated in accordance with the plans for the particular place where it is to go in the structure, and the bolt holes are designed to be opposite each other when in place.

The ironworkers doing work as “connectors” carry, as did plaintiff, two “spud” wrenches, 18 inches long, in a holder. At one end of each spud wrench are jaws to fit the nut to be screwed onto a bolt that the connector is to insert into the holes fabricated in the column and beam. For that purpose he also carries with him a bolt bag and sledgehammer. The opposite ends of each spud wrench are narrow, tapering shanks, which are inserted into the holes of the column. The connector must hold and stand on one or both spud wrenches to get into position. He must then remove at least one of the spud wrenches to use the tapered end of the spud wrench to line up the holes in the vertical column and horizontal beam which are to be bolted together.

Plaintiff was directed by his foreman to connect a horizontal beam to the south face of a column at about 80 feet above the ground level. Plaintiff climbed the north face of the column, the side opposite to that on which he was to make the connection. The column, which was H-shaped, was an unusually wide one. Plaintiff climbed by holding the flanges and “walking up” the rivet heads in the face of the column. This was the customary way to climb a column of that size, and other men had climbed the column that way earlier that day to connect a beam at a lower level. There was no other way for a connector to get to the place where the beam was to be bolted, and plaintiff was familiar with the manner of climbing that kind of column.

Plaintiff had to climb almost 40 feet to get into position to make the intended connection, and it was necessary for plaintiff to get to the opposite side of the column where the beam was to be swung into place by a crane. He fell from that point, roughly 40 or 42 feet down to a plank floor.

Plaintiff could not recall much of what happened. He thought he had got his spud wrenches in holes in the web of the column at about waist level, and that he tried to get one foot on one of the wrenches to support himself. He thought one of the spuds fell out — “All I remember is I was trying to get on the spud and the next thing I knew I was in the hospital. I hardly remember falling or anything, but I came to in the hospital, I don’t know how many days later.” He further testified, “On a narrow column in case anything happens, you get tired or something, if you start to fall, you can grab this, and hang on. With a wide column there is nothing to grab. When you go to fall you are done.”

At the close of plaintiff’s evidence and with leave of court, plaintiff filed a second amended complaint, of which Count I alleged “that the defendant had the right to control the job and was in charge of the job, and that it violated the Structural Work Act as set out in Chapter 48, Section 60 . . . and Section 64 ... in one or more of the following particulars:

“ (a) The stay, support or other mechanical contrivance used in the alteration of a building or structure was not placed and operated as to give proper and adequate protection to the life and limb of any person engaged thereon;
“ (b) Failed to have a safe and proper scaffold, stay, support, or other suitable device not less than sixteen feet or more below the area on which the plaintiff was working, although the said work was being performed at a height in excess of 32 feet;
“ (c) Had an area covered with steel beams and structures 41 feet below the area of the stay or support on which the plaintiff was then working, so that upon striking the said beams the violence was increased.”

Later plaintiff added an additional allegation:

“ (d) Failed to provide the plaintiff with a float upon which to support himself while doing the work required of him.”

At the close of all the evidence, defendant’s motion to strike the allegations of each of the subparagraphs and to withdraw each from the consideration of the jury was denied and, over defendant’s objections, the jury was instructed as to both sections of the statute and all of the subparagraphs.

Considered first is defendant’s contention “that upon the undisputed facts in this record neither statute nor the allegations of the subparagraphs were applicable.”

Defendant states that the column from which plaintiff fell was a permanent structure of the building under construction, and that no “scaffold” or “float” (a working platform) was used.

Defendant asserts that it has been settled by two recent Appellate Court decisions that paragraph 60 does not apply to a permanent structure of the building, or require the furnishing of a scaffold. The two cases, in both of which leave to appeal has been denied by our Supreme Court, are Parizon v. Granite City Steel Co., 71 Ill App2d 53, 218 NE2d 27 (May 18,1966), and Bohannon v. Joseph T. Ryerson & Son, Inc., 72 Ill App2d 397, 219 NE2d 627 (June 28,1966).

In Parizon, the plaintiff slipped and fell from the completed portion of the roof of a building under construction, as he was carrying a corrugated sheet to be installed as part of the roof. He sued both the contractor and the owner. In reversing judgments against both defendants, the court stated (p 60):

“This appeal directly raises the issue of whether or not the Structural Work Act applies to those circumstances where men work upon permanent structures. The pleading, as the case went to the jury, alleged that it was necessary to use scaffolds and that the roof of the building was so used. We understand that there is no controversy as to the fact that the sheets of roofing were permanently affixed and installed as a part of the building at the time the several workmen were upon the roof placing and fastening the next row of sheets.
“If the allegations of the pleading that it was necessary to use a scaffold are taken to mean that there was a statutory duty to erect and construct a scaffold for the work being done upon this occasion, the recent authority of opinions of our courts are to the contrary. It has been held in Miller v. De Witt, 59 Ill App2d 38, 208 NE2d 249, and Bradley v. Metropolitan Sanitary Dist., 56 Ill App2d 482, 206 NE2d 276, that section 1 of the Structural Work Act does not undertake to state or provide when or under what conditions a scaffold is required to be erected as a matter of statutory duty.”

After reviewing the common meaning of the term “scaffold,” it is said (p 62) :

“ [I]t is difficult to conclude that the intent or understanding of the Legislature was that the language of the Act applied to a fixed permanent structure, or that such a structure, or its parts, would be a scaffold or platform within the meaning of the Act.
“No cases from our Supreme Court have been cited and we have found none which hold a permanent structure, or, as in this case, the roof of the building as permanently affixed is to be treated as a scaffold or as an item of the several categories set forth in section 1 of the Act. On the contrary, the several cases of our Appellate Courts cited and referred to, or developed through our own investigation, emphasize that the Act is applicable to the temporary structures erected for use as an incident to the construction work.”

In Parizon (p 69), the court also considered the contention “that this case should be viewed in the light of the fact that the plaintiff was engaged in an ultrahazardous form of work,” and noted, “there is a distinction between a cause of action under the Structural Work Act and a cause of action for failure to provide a safe place to work,” and stated (p 70):

“[T]he rule of liberal construction does not permit either restriction or enlargement of the meaning of the terms of the statute, and it is not within the province of the court to take from, or enlarge, the meaning of a statute by reading into it language which will, in the opinion of the court, correct any supposed omission or defect. Rather, we must seek the construction of statutory language in the usual meaning attached to the words used. ... In distinction, we are here asked to add new connotations to the language of a statute which does not require that scaffold or comparable appliances be used, and which specifies the instrumentalities, each with its own use, and an apparent usual meaning, none of which suggest or connote a structure of the sort now at issue.”

Defendant notes that in Bohannon (72 Ill App2d 397, 219 NE2d 627), the plaintiff was standing on wire mesh, a permanent part of the structure. He fell when the hog or pen rings holding the wire parted, causing him to fall through the opening thus created in the wire mesh. There the court concluded (p 412):

“In the case at bar, we find that the struts were a permanent part of the building. Therefore we hold, in accordance with Parizon v. Granite City Steel Co. . . . that a permanent structure is not a structure within the terms of the Illinois Structural Work Act. Furthermore, to resolve any conflicts that may exist between the case at bar . . . and the dissenting opinion in Parizon . . . , we find there was no evidence submitted in the instant case to show that the struts were used on prior occasions other than to support the roof of the building and that, therefore, the use of the struts as a scaffold was not contemplated when they were installed. As we pointed out above, the wire mesh was part of the work in progress and, therefore, not a structure within the Illinois Structural Work Act.”

Defendant argues that Parizon and Bohannon, and the cases cited therein, “compel the conclusion that the column was not ‘a stay, support or other mechanical device employed in the erection’ of the building. . . . [T]hese cases hold that the absence of a scaffold or float is not a violation of Sec 60; that statute merely provides that if a scaffold or similar contrivance is ‘erected or constructed . . . for the use in the erection ... of any . . . building’ it shall be erected in a safe, suitable and proper manner, etc. The allegations of subparagraphs (a) and (d) do not charge violations of Sec 60.”

On the issue of whether paragraph 60 applies to permanent structures, plaintiff contends the vertical steel column was furnished and used as a scaffold, support or mechanical contrivance within the meaning of the following language of paragraph 60:

“. . . all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances erected or constructed . . . for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure . . . .”

Plaintiff argues, “Several things are clear in the case at bar. The column, the rivet heads and spud wrenches were the only means intended and furnished plaintiff Spiezio for his use in climbing the column to make the necessary connection in the course of the erection and construction of the addition to defendant’s generating station. And Spiezio so used them.”

Plaintiff asserts, “The Act itself nowhere excludes, expressly, or even impliedly, permanent structures from its sweep. As already noted, even a permanent structure may afford temporary support to a workman. He may use the structure temporarily as a scaffold, support or similar mechanical contrivance, in any event.” Plaintiff’s authorities include: Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 317, 318, 175 NE2d 785 (1961):

“[In considering] the construction of this act, we must apply the legal axiom that the words of the statute should be construed to give effect to the legislative intention, which must be ascertained not only from the language of the entire act, but from the evil to be remedied and the object to be attained.
“. . . As its title signifies, the Scaffold Act endeavored to give protection to workmen engaged in structural work by requiring certain standards for such work and by providing both criminal penalties and civil liability for failure to comply therewith. The statutory purpose . . . was ‘to prevent injuries to persons employed in this dangerous and extra-hazardous occupation, so that negligence on their part in the manner of doing their work might not prove fatal.’ It was held, therefore, that the doctrines of assumed risk and contributory negligence had no application to the Scaffold Act, since it was patterned after the mining statute, which had been similarly construed.”

Louis v. Barenfanger, 81 Ill App2d 104, 226 NE2d 85 (1966), where it is said (p 109) :

“As stated in Thon v. Johnson, 30 Ill App2d 317, 174 NE2d 400, ‘There is little authority in Illinois as to what does and what does not constitute a scaffold within the meaning of the statute,’ and whether an object or instrumentality is a scaffold or support must be determined on the facts in each case. Thus an overhead crane (Bounougias v. Republic Steel Corp., 277 F2d 726), a shovel extension mounted on a tractor (Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270) and a plank laid across a concrete form (Frick v. O’Hare-Chicago Corp., 70 Ill App2d 303, 217 NE2d 552) were held to be scaffolds under the facts presented in those cases.....
“. . . Obviously the failure to properly place a scaffold or support is as much an actionable violation of the Structural Work Act as is the failure to properly construct, erect or operate a scaffold or mechanical contrivance.”

Koepp v. National Enameling & Stamping Co., 151 Wis 302, 139 NW 179 (1912), where it is said (pp 184, 186):

“Any combination for use in doing any kind of work mentioned in the statute where the servant is dependable thereon for support, in place of an ordinary surface, such as the ground or floor, is a mechanical contrivance. The Legislature, in the combination of words, ‘scaffolding, hoists, stays, ladders or other mechanical contrivance,’ viewed in a broad remedial sense in favor of employes, left little, if anything, uncovered which may be used in the work mentioned, where required to be done beyond the reach of one standing on an ordinary surface.
“The same is true of the term ‘scaffolding’ and the words ‘mechanical contrivance.’ Each is to be given the broad comprehensive meaning necessary to accomplish the manifest purpose of the act.”

Evans v. Portland Ry. Light & Power Co., 66 Ore 603, 135 P 206 (1913), where it is said (p 208):

“Until the trestle was used for the purpose for which it was built and as long as it was employed as a means of erecting the power house, it was pro hac vice a scaffolding, staging, or, as denominated by the court, a platform upon, along and over which the defendant’s foreman in charge of the work directed the plaintiff to perform his labor.”

1967-1968 Supplement to 35 Am Jur, Master and Servant, § 195, p 625:

“On the other hand, when the injury is the result of the use by the workman, for purposes of personal support, of a device which has not been constructed with the intention that it should be so used, the courts have been reluctant to hold that such devices are scaffolds. . . . Where the device being used as a scaffold was, or was intended to be, a permanent part of the structure being worked upon, the rule seems to be that if the apparatus in question was being put to a temporary use as a support for workmen at the time of the accident, it is a scaffold, regardless of its ultimate use as a part of the permanent structure. Another criterion used by courts to determine whether a particular structure is a scaffold is the element of danger involved in its use and whether this was the danger which the legislature was attempting to alleviate in enacting the statute requiring safe scaffolds.”

Considering the view this court takes of the facts of this case, we do not believe that it would be useful to attempt to reconcile the various pronouncements made in defendant’s authorities. We do not agree with defendant’s contention that the permanent character of a device used as a support or platform necessarily places a case outside of the application of the Structural Work Act, We do agree that the statutory language “is not to be broadened to include every place at or upon which a person may work”; also, that any place where a workman chooses to stand does not become a scaffold within the meaning of the statute.

In our opinion, the rule to be applied here should be that if the apparatus was intended to be and was put to temporary use to provide footing or support above the ground or floor for workmen at the time of the occurrence, it was a scaffold and within the purview of the Scaffold Act, regardless of whether the apparatus or device was, or was intended to be, a permanent part of the structure being worked upon. 35 Am Jur, Master and Servant, § 195. This, in substance, is the rule this court endeavored to apply in Frick v. O’Hare-Chicago Corp., 70 Ill App2d 303, 217 NE2d 552 (1966), where it is said (p 309):

“On trial, in the absence of contrary evidence, the testimony of plaintiff, if consistent with the extracts taken from his deposition, should be sufficient to show that the plank was intended to be and was used as a scaffold, support or mechanical contrivance in connection with the construction of the addition, and within the purview of the Scaffold Act.”

Plaintiff’s injuries were not “the result of the use by the workman for purposes of personal support, of a device which ha [d] not been constructed with the intention that it should be so used.” Plaintiff’s co-workers testified that it was the customary and usual way in structural steel construction to use a steel column being permanently installed as a temporary device to provide footing or support above the ground or floor for structural steel workers. If so, such a custom and use here supplied the intention to use the steel column as a scaffold, support or mechanical contrivance in connection with the construction of the addition and within the purview of paragraph 60 of the Scaffold Act.

Plaintiff also contends that paragraph 64 of the Scaffold Act (Ill Rev Stats, c 48), was violated by defendant. The words in that paragraph are “any water pipe, standpipe, tank, smokestack, chimney, tower, steeple, pole, staff, dome or cupola.” Plaintiff asserts that the column was such a high perpendicular structure, involving the same perils attendant or associated with working thereon, as to come under paragraph 64 of the Act.

As to the charge of violation of paragraph 64, defendant argues, “The express language of the statute compels this interpretation; it requires secondary scaffolding 16 feet below only when there is being used a ‘working scaffold, staging, swing, hammock, support or temporary platform.’ . . . Here, no ‘working’ scaffold was in use, and no secondary or subscaffold was required by section 64. Section 64 has no application whatever to the facts of this record. We submit that as in Parizon, Bohannon and Bradley, there was a failure to bring the case within any provision of the statute relied upon.”

Plaintiff argues that “it is inconceivable that a structural column extending some 80 feet above ground straight up into the air, and more than 40 feet above any platform or planking, just as any ‘tower, steeple, pole, staff,’ should not fall within the general classification so clearly applicable, even though the term ‘column’ is not expressly used. Obviously what was intended to be protected are workmen engaged in the perilous work of steeplejacks on high perpendicular or vertical structures. This is the thrust of the examples used. ... It follows from the remainder of that provision, requiring a proper scaffold or support or other suitable device to be erected at a certain minimum distance below plaintiff, that one should have been so erected, and that the failure to do so was a violation.”

We agree with plaintiff, and in our opinion the purpose of paragraph 64 was to protect workmen engaged on high perpendicular or vertical structures and should be construed so as to include structures, complete or incomplete, temporary or permanent, which fall within the purview of the general class outlined in paragraph 64.

We conclude that the question of the applicability of the Scaffold Act, paragraphs 60 and 64, and the question of whether these provisions were violated by defendant on the evidence in the record were for the determination of the jury.

Considered next is the issue of whether defendant, as owner, was “in charge of” the work of Bethlehem so as to be guilty of a “wilful violation” of the statute (Ill Rev Stats 1957, c 48, If 69). The plans and specifications for the job were prepared by a consulting firm of engineers, Sargent & Lundy. Defendant hired no general contractor. Contracts were made directly by defendant with a large number of prime contractors, including Bethlehem. Each contractor had a specific function or job to accomplish in connection with the new construction.

Plaintiff’s evidence on this issue included the reading into evidence of the deposition of Earl Jacobsen, who was a retired employee of the defendant at the time of the trial. He was called by plaintiff and testified under section 60 of the Civil Practice Act as an adverse witness, over defendant’s objection. Jacobsen, prior to his retirement, had been employed by defendant as a station construction engineer. In 1957 he had charge of defendant’s office “in connection with the construction of the unit, which included the construction inspectors, supervisors and clerical help for paper work.” He stated, “The construction began in the spring of 1957. At the time it began, I had a group of men under me, referred to as the station construction force. There were six in the construction force itself, five in the clerical force and four watchmen or gatemen. Fifteen men in addition to myself. I was in charge of this group of men at the site. . . . From the time this construction began, we would get reports weekly, not necessarily from the contractors engaged at the site but my construction supervisors would list the number of men that were working with the contractor so we would know what the progress might be. I, myself, and those working under me observed the progress of the work by being there daily.”

Jacobsen was familiar with the Bethlehem Steel contract and testified regarding it. It contained standard specifications and standard conditions, which included:

“The Contractor agrees that the Work shall be done under the general supervision and to the satisfaction of the Owner’s Station Construction Department, which is hereinafter referred to as the ‘Engineers.’
“The Contractor agrees to observe and abide by all the terms and conditions of the Owner’s General Conditions.”

The “General Conditions” included the following:

“9. Safety of the Work. The Contractor agrees to carry on the Work in a proper, safe and secure manner with the utmost care so as to prevent loss, injury or damage to the Owner’s property or the property on the Premises and/or surrounding property, and so as to prevent danger to the lives or persons of individuals and, if in the opinion of the Engineers the Work is not being so carried on, they may order the Work stopped immediately and not resumed until, in their opinion, proper means and methods have been adopted by the Contractor to insure the carrying on of the Work so as to prevent such threatened loss, injury, damage, or danger. The Owner reserves the right, however, to order the Work stopped whenever the Work interferes or threatens to interfere with the operation of the Owner’s equipment until such interference is eliminated. All equipment used on the Premises shall be in first class condition and any equipment which, in the opinion of the Owner or the Engineers, shall be considered inadequate or unsafe, shall be removed at the expense of the Contractor. . . . All safety barricades and planking shall be installed to the satisfaction of the Engineers.”

Jacobsen also testified, “The fact is that neither I nor any man under my supervision in the station construction department gave instruction to the superintendent of the Bethlehem Company as to the manner in which the steel should be erected. We don’t tell any superintendent how to do his work. . . . With respect to paragraph [9] of the General Conditions, ‘Safety of the Work,’ I don’t recall that I or any of the members of my force took exception to the conduct of Bethlehem Steel with reference to the safety of the work under that paragraph. . . . [N] either I nor any of the members of my force had occasion at any time to direct Bethlehem Steel to remove or discharge or disqualify any of its employees on the job.”

Plaintiff’s evidence on this issue included the following testimony: “There weren’t any Commonwealth Edison employees around the scene of the accident at the time it occurred. There were Commonwealth Edison employees around this particular area at the time the other six or eight men climbed this column in order to bolt up the lower beam; they were on the job there roaming around looking at how the job is progressing. They weren’t giving any instructions to the men climbing the column.” Also, “During the period I was there I had occasion to see representatives of the Edison Company. They had someone there all the time. I would see them on the job each day. I don’t remember seeing them talk to my superiors.”

Defendant argues, “Tested by proper standards, it is clear that Edison was not ‘in charge of’ Bethlehem’s work so as to be charged with a ‘wilful violation’ of the statute in any of the respects charged here. There was no evidence that Edison knew anything about the practice of, or the manner of, climbing vertical columns such as this; there is no evidence to charge Edison, a producer of electricity, with a knowledge of proper structural steel erection practices superior to that of Bethlehem, one of the leading companies in this field. This was not a condition, or a method of doing the work, which was of long-standing, and could have been observed by Edison, complained of to Bethlehem, and corrected; it was a method of climbing the column voluntarily chosen by plaintiff (he would not have had to cross to the other side of the column if he had climbed the face of the column on which he was to make the connection), and within a very few minutes at the most, plaintiff had fallen. Edison was not shown to have had any knowledge of the fact, or the likelihood, of plaintiff’s climbing the column, or to have had any opportunity to stop plaintiff, or to stop all the work, until some other method of connecting the beam was undertaken.”

Defendant further argues, “We submit that upon this evidence, which was undisputed, Edison was not sufficiently ‘in charge of’ Bethlehem’s work to have been able to prevent plaintiff from climbing the column in the manner he did, if that manner of performing the work was a violation of the statute in any of the respects alleged.” Authorities discussed by defendant on this issue include: Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785; Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965); and Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630 (1967).

Plaintiff argues, “Defendant acted as its own general contractor, maintained its own project engineer in the field to represent it, hired the numerous and various prime contractors including Bethlehem Steel, and approved the suppliers and subcontractors of Bethlehem Steel. It further maintained liaison with the prime contractors through its construction department headed by its project engineer and, through its consulting engineers Sargent & Lundy, received progress reports, and reserved the right to make alterations or corrections in the work. It further reserved all other powers of supervision over the work and Bethlehem’s employes, including the right to direct safety requirements and practices in conformity with safety laws.”

Our examination of this record indicates that the basic facts are similar to those in Larson v. Commonwealth Edison Company. In both cases it appears that the same type of contract, including similar “General Conditions,” was used. Therefore, the pronouncements of our Supreme Court in Larson are pertinent here. In Larson, it is said (p 321):

“The controlling section of the statute, which is section 9, makes no mention of either the retention or exercise of control and supervision, but imposes a duty of compliance, and liability for either wilful violation or a failure to comply with the terms of the act, upon ‘any owner . . . having charge of the erection . . . [or] alteration ... of any building . . . [or] other structure . . . .’ Ill Rev Stats 1957, c 48, par 69.
“While it may be conceded that some of the decisions in this jurisdiction involving the Scaffold Act appear to have equated ‘having charge’ with ‘supervision and control’ in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of the other. The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it. . . . Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Bather, consistent with its beneficent purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.
“In the Gannon case (22 Ill2d 305,) where it was expressly noted that the owner involved had ‘exercised no control over the manner in which the work was being done,’ (p 307), we held that an owner must have some direct connection with the operations, over and above mere ownership or the employment of an independent contractor, and indicated that the question whether the particular connections and activities in a given case were such that an owner could be deemed to have charge was a question of fact for the jury to determine.”

Following the guidelines of Larson, we conclude that the question of whether defendant’s “particular connections and activities” in the instant case were such that defendant, as an owner, could be deemed to have charge was properly a question of fact for the jury to determine.

Considered next is defendant’s contention of prejudicial errors. The first error asserted is, “The court erred in refusing to withdraw from the jury the allegations of violation of each section of the statute, and in submitting both sections of the statute to the jury in the instructions.” In view of our conclusions that paragraphs 60 and 64 are applicable to the facts shown in this record, we find no error here.

Defendant next asserts, “The court erred in admitting opinion testimony by plaintiff’s witness Botica as to supposed violations of the Structural Work Act.” Joseph J. Botica, a structural ironworker superintendent, testified as to the “customs and practices in the steel work industry,” including practices concerning platforms and planking. He had followed the trade since 1941 and had worked as superintendent on jobs in this community.

Defendant contends, “At the trial below — where the ultimate jury issue was what was ‘safe,’ ‘suitable,’ ‘proper’ and ‘adequate,’ under the plaintiff’s theory — the trial court, over defendant’s objections, admitted testimony by the plaintiff’s witness Botica, a structural iron-worker, which persistently violated the ultimate issue rule as applied by the Illinois courts. Ostensibly, Botica was asked his opinions as to certain ‘customs’ in structural steel erection and, through a hypothetical question and subsequent inquiries for his supporting ‘reasons,’ as to whether there could be a ‘causal connection’ between the ‘manner in which the work was being done’ and the injury sustained by the plaintiff. However, a careful review of Botica’s testimony will reveal that this was a deliberate subterfuge to furnish a device through which Botica’s opinions on the ultimate issues could be submitted to the jury by an ‘expert.’ . . . Botica stated his conclusions regarding ‘adequate facilities’ ‘to protect his life and limb’; regarding the need for other methods than the method used, to provide ‘a safe working area’; the need for a platform at the top of the column, to provide ‘adequate’ time and ‘a relaxed area to make the necessary connection’; the need for a properly placed float on the column to be ‘on the safe side’; the need for ‘adequate ladders on the job’; the need for planking every second floor ‘to protect life and limb’ . . . .”

Defendant’s authorities on this point include Allen v. Yancy, 57 Ill App2d 50, 206 NE2d 452 (1965), where it is said (p 60):

“Our courts have held that admission of this kind of testimony is error. In order to preserve the independence of the jury, it has been held that a witness may not give his opinion on an ultimate issue in the case.”

As to Botica, plaintiff contends, “Botica’s testimony as to custom and practice in the industry, such evidence was relevant in determining-the ‘standard of care,’ that is, what was proper conduct here. In the case at bar it was furnishing ‘safe, suitable and proper’ scaffolding or support. Such testimony ‘illustrates what is feasible, and suggests a body of knowledge of which the defendant should be aware.’ ” Darling v. Charleston Hospital, 33 Ill2d 326, 211 NE2d 253 (1965).

We have examined Botica’s testimony in the light of defendant’s objections. Botica’s conclusions regarding “proper and adequate facilities,” “protection for life and limb,” “safe” and the like might be considered objectionable under the ultimate issue rule. However, in supplying expert opinion upon custom in high steel construction in which considerations of safety are routine, a witness would have difficulty in expressing himself without the use of those terms. In short, we believe the use of the particular words employed by Botica did not have the effect of rendering the jury less independent in its consideration of the ultimate issues of the case. Botica’s testimony was proper in that it informed the jury of various industry practices and customs, and it was not prejudicial because it also informed the jury that the motivating consideration behind certain of those practices was the safety of the workmen. We conclude that the defendant was not prejudiced by the testimony objected to.

Finally, defendant contends, “The court erred in defining the phrase ‘having charge of’ in its instructions.” Instruction No. 16, given to the jury stated:

“The term ‘having charge of’ as used in these instructions is a generic term of broad import; it may include supervision and control, but it is not confined to it.
“In determining whether an owner is ‘in charge,’ amongst the factors which might be considered are the retention of the right to control or the actual exercise of control.
“Whether a party is ‘in charge of’ the work under this Statute is a matter for you to determine under all the facts and circumstances.”

Defendant maintains the giving of this instruction was prejudicial error, and it comes within the pronouncements of the Supreme Court in Larson v. Commonwealth Edison Company. There the court said (p 323):

“It is to be gathered from the opinion of the Appellate Court, and the arguments of Edison in this court, that justification for the instruction given in this case may be found in the need to provide jurors with a definition of the statutory words ‘having charge of.’ We do not believe such a need exists. It is well established that the meaning of words, used in their conventional sense, need not be defined or explained in giving instructions to the jury. . . . The term ‘having charge of’ is one of common usage and understanding, and it is our opinion that further attempt at definition can only lead to confusion and error.”

Defendant argues that the instruction given here emphasizes factors favorable to plaintiff’s contention, which factors, according to the Supreme Court, “are not necessary or conclusive factors, nor ... a sine qua non for liability under the statute” and “thus to focus the jury’s attention on only some of the factors which the jury must consider on this issue was error.”

Plaintiff contends, “The instruction does not purport to define the term ‘having charge of.’ It does not definitively include elements to the exclusion of others, nor does it inform the jury that the retention of the right to control or the actual exercise of control is sufficient to fix liability under the Act. . . . The instruction here merely incorporates a reference to some of the factors which the jury properly could consider in determining whether defendant was such an owner, within the meaning of the Scaffold Act.”

We believe that our Supreme Court in Larson v. Commonwealth Edison Company strongly indicated that the court found no justification or need to define, explain or to provide jurors with a definition of the statutory words “having charge of.” Therefore, the giving of instructions in this area requires serious consideration and may lead to confusion and prejudicial error.

The instruction here appears to be based on language used by the Supreme Court in the Larson opinion. We are aware that it is not a recommended practice in this state to convert language of judicial decisions into instructions. (Bartosh v. Ryan, 344 Ill App 214, 219, 100 NE2d 330 (1951).) It was not a peremptory instruction, and we do not believe that the instruction misled or confused the jury in this case. We find no prejudicial error in this instance.

For the reasons stated, and finding no reversible error in this record, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    Arthur Wehrum and Esther Wehrum, Plaintiffs-Appellants, v. Village of Lincolnwood, Cook County, Illinois, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 51,706.
    First District, First Division.
    February 5, 1968.
    Rehearing denied March 11, 1968.

      Overton, Marks & Schwartz, of Chicago, for appellants.
    Ancel, Stonesifer, Glink & Levin, of Chicago (Louis Ancel, Ronald M. Glink, and Kenneth O. Stonesifer, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiffs appeal from an order of the Circuit Court of Cook County, which dismissed their complaint for trespass on the ground that the cause of action was barred by a prior judgment.

Plaintiffs were the owners of a vacant parcel of real estate located in Lincolnwood, Illinois. In 1960, the Village entered upon the property and converted the property into a playground. The land was continuously used by the Village as a recreation area and in 1965 condemnation proceedings were commenced. An award was made to plaintiffs in those proceedings and subsequently the instant action was instituted for damages for the Village’s tortious action in trespassing upon the land prior to the condemnation proceedings.

The doctrine of res judicata, relied upon by the Village is succinctly set forth in Freeman on Judgments, 5th Edition, § 627:

“(T)his doctrine (res judicata) is that an existing final judgment or decree rendered upon the merits by a court of competent jurisdiction upon a matter within its jurisdiction is conclusive of the rights of the parties or their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue and adjudicated in the first suit.”

In order for a former adjudication to be an absolute bar upon the subsequent action, there must be identity of parties, of subject matter, and of cause of action. Hoffman v. Hoffman, 330 Ill 413, 161 NE 723 (1928). Further, in those situations where the cause of action is the same, the doctrine extends to all grounds of recovery or defenses which might have been presented in the first suit. Chicago & W. I. R Co. v. Alquist, 415 Ill 537, 114 NE2d 713 (1953). It is the Village’s position that “all questions of damages, past, present and future as to the lands and interest described and taken by the condemning authorities, are adjudicated in the condemnation proceeding and finally determined by the condemnation judgment.” We do not agree with this contention.

There is no question that the parties to the condemnation proceedings and the instant tort action are identical. If the subject matter were considered to be the piece of real estate, that too would be identical. However, it appears to us that the causes of action are clearly distinct and encompass entirely different issues. Condemnation proceedings, which are governed by the Eminent Domain Act (Ill Rev Stats 1965, c 47), present to the court only one issue and that is the value of the land being taken or damaged. Value is determined as of the date the petition to condemn is filed. Public Bldg. Commission of Chicago v. Continental Illinois Nat. Bank & Trust Co. of Chicago, 30 Ill2d 115, 195 NE2d 192 (1963). As pointed out by the Supreme Court in Chicago, T. H. & S. E. R Co. v. Greenfield, 268 Ill 94, 108 NE 750 (1915):

“The Eminent Domain act requires nothing of a defendant. No pleading is contemplated, and not only is no answer required, but if one is filed it may be stricken from the files. The only inquiry is the amount of compensation and a defendant may participate in the hearing upon this question, introduce evidence and take any other appropriate action without answer or other pleading.” (P 95, citations omitted.)

Righeimer in “Eminent Domain in Illinois” also takes the position that the only issue raised in a condemnation proceeding is “the amount to be awarded for the property appropriated and damages if any to the remainder of the tract of which the property appropriated is part.” (At p 21.) Thus, the question of damages for tortious action by the condemning authority with respect to the real estate designated in the petition to condemn cannot be in issue in those proceedings. Whether such prior tortious action is of the class that will give rise to recovery is not involved in the instant case. See Chicago Housing Authority v. Lamar, 21 Ill2d 362, 172 NE2d 790 (1961).

Although not cited by either party, we feel the instant case falls within the following rule set forth in Nichols on Eminent Domain, § 14.24:

“(A)lthough there is authority to the contrary, trespasses by the condemnor which antedate the condemnation are not grounds for recovery in the condemnation proceeding nor does the allowance of an award in such proceeding for other elements of damage bar an action based upon a precedent trespass.” (Vol 4, P 557, Emphasis added.)

Not one of the several Illinois cases upon which defendant relies involves the question of prior tortious conduct by the condemnor. In McReynolds v. City of West Frankfort, 3 Ill App2d 406, 122 NE2d 433 (1954), the city had condemned land for the purpose of constructing a dam to create a reservoir. Twenty-one years later, the plaintiff claimed that his land was damaged by recurrent overflows from the reservoir. However, plaintiff’s land was part of the tract included in the original condemnation proceedings and “compensation had already been paid for the depreciation in value of this land caused by the present height of the spillway.” (P 410.)

Allen v. Haley, 169 Ill 532, 48 NE 478 (1897), involves condemnation of a parcel of land by the Sanitary District of Chicago. After paying plaintiff the amount of the award, defendant entered upon the land, and in so doing broke certain embankments around a certain ice pond and broke down certain structures on the premises so condemned. The condemnation award, concluded the court, includes the land as well as the structures on it. The condemnation proceeding adjudicated the value of all property taken and plaintiff’s recovery in such proceedings was not limited to the value of the land alone. Thus, the Allen case holds that a condemnation award covers both the real estate and any structures thereon at the time of the award. It does not stand for the proposition that prior tortious action of the condemnor is included in such award.

Defendant also cites the case of Doyle v. Baughman, 24 Ill App 614 (1887). In Doyle, the drainage district brought condemnation proceedings to acquire the right of way over plaintiff’s land for the purpose of constructing drainage ditches. The statute under which an award was made provided that “the jury shall hear the evidence offered in the case as to the value of the land proposed to be taken and all damages consequent upon the construction of the proposed work.” Plaintiff’s subsequent suit for trespass to his land, by the removal of dirt in excavating the ditch and piling that dirt on his land, sought damages for an injury that had been assessed and compensated for in the original proceedings. The instant case does not involve a similar statute and the trespass alleged here was prior, not subsequent to the condemnation.

The case of Grunewald v. City of Chicago, 371 Ill 528, 21 NE2d 739 (1939) is cited by defendant as holding that plaintiff had the option of suing for trespass or acquiescing and waiting for condemnation proceedings to be filed. In Grünewald the city damaged certain property in the course of constructing a viaduct and ramp. The owner of the land sued the city for damages. An appeal to the Appellate Court was transferred to the Supreme Court on the ground that the proceedings were governed by the rules relating to eminent domain and a direct appeal would lie to the Supreme Court. The opinion reversing this transfer order is limited to the holding that jurisdiction was properly in the Appellate Court, the case being a common law action for damages. (See People ex rel. Tyson v. Kelly, 379 Ill 297, 40 NE2d 510 (1942).) The Supreme Court did comment that plaintiff had the option of instituting mandamus proceedings to compel the municipality to commence action under the Eminent Domain Act and, had he done so, his recovery there would have barred any further law suits. This, however, assumes that had such a course of action been followed, the damage to the owner’s property, caused by the proposed construction work, would have been part of the award. Grünewald does not, however, deal with the issue of prior trespass. In the instant cause the condemnation action was initiated by the Village of Lincolnwood, and by so doing, the trial was limited to the issue of the value of the property taken.

We are referred in the briefs to the cases of Lewis v. City of Boston, 130 Mass 339 and Spaulding v. Arlington, 126 Mass 492. Although these cases would appear to reach a conclusion opposite to ours, both cases are based on a Massachusetts statute which is totally different than the Illinois constitutional provision and the eminent domain proceedings under chapter 47 of our statutes.

Other cases cited by defendant are also inapplicable to the instant cause. Chicago & E. I. R. Co. v. Loeb, 118 Ill 203, 8 NE 460 (1884), involves the right of a subsequent purchaser to sue for smoke, cinders and ashes thrown on his land by the careful and prudent operation of a railroad. The railroad was in operation at the time plaintiff purchased the land and the right to recover for depreciation in land value was in the original owner.

Wabash, St. L. & P. R. Co. v. McDougall, 118 Ill 229, 8 NE 678 (1886), like the Loeb case held that the owner, at the time damages for taking or injury to land occurs, is the only one entitled to recovery and such right does not pass to a subsequent vendee. Plaintiffs in the instant case were the owners of the real estate at the time the Village trespassed on the land.

An attempt to enjoin construction of an elevated street railroad was denied in Doane v. Lake St. El. R. Co., 165 Ill 510, 46 NE 520 (1886), since the injury was a depreciation of the property, recovery for which was in an action at law and equity would not interfere by injunction.

Neither the Loeb, McDougall or Doane cases are of any assistance to us in determining whether an action for prior trespass is barred by an award to the land owner in a condemnation action initiated by the Village. The circumscribed nature of proceedings under the Eminent Domain Act, based on the need to facilitate rapid disposition of condemnation actions, leads us to the conclusion that an award in such causes will not bar the instant suit founded on a prior trespass.

For the foregoing reasons, the order of the Circuit Court of Cook County is reversed.

Judgment reversed.

BURMAN, P. J. and MURPHY", J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Respondent-Appellant, v. Herman Raddatz, Petitioner-Appellee.
    Gen. No. 51,958.
    First District, First Division.
    February 5, 1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago, (Elmer C. Kissane and Joseph V. Roddy, Assistant State’s Attorneys, of counsel), for appellant.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Pursuant to a petition filed on behalf of the defendant, the trial judge, after a pretrial bench hearing, suppressed the defendant’s written confession. The State appeals from this order.

At the outset we are confronted with the contention by the defendant that the State has no right to appeal from an order suppressing a confession. We see no merit to this contention.

Supreme Court Rule 27 (Ill Rev Stats 1965, c 110, § 101.27) headed Procedure in Criminal Appeals provides in part:

(4) In criminal cases the State may appeal from an order or judgment, the substantive effect of which results in dismissing an indictment, information or complaint; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence (Emphasis added.)

The courts of this state have repeatedly defined a confession as the highest type of evidence known to law. People v. Green, 17 Ill2d 35, 41, 160 NE2d 814. We hold that the State under this rule clearly has an absolute right of appeal from the order suppressing such evidence.

We summarize the evidence. John Motzny, a detective assigned to the homicide unit at the Shakespeare Avenue Police Station, proceeded with a fellow police officer to the apartment of the defendant, Herman Raddatz, on January 14, 1966. They arrived at the defendant’s apartment at approximately 2:00 p. m. and found a Miss Nancy Jurkowski present in the apartment along with the defendant. The officers were seeking out the defendant in connection with an investigation they were making of several robberies and a shooting that had recently taken place. In furtherance of their investigation Officer Motzny and his partner took the defendant to the Shakespeare Avenue Station. The officers arrived at the station at about 3:00 p. m. They left the defendant in the custody of other officers at the station and departed; arriving back at the station between 3:30 and 4:00 p. m. They brought with them Nancy Jurkowski and several items they had found in Miss Jurkowski’s apartment. Matzny showed the items to the defendant and began to question Raddatz concerning his participation in the robberies and shooting then under investigation. After a short period of interrogation the defendant orally confessed to having committed a particular theft and shooting. Prior to his oral confession at the station Raddatz was not warned by the police concerning his constitutional rights to remain silent and to the presence of an attorney.

Shortly after the defendant had confessed, Officer Motzny took Raddatz to the office of the State’s Attorney, arriving there at approximately 4:30 p. m. Motzny then accompanied the defendant to the office of John J. Stamos, an Assistant State’s Attorney. At the hearing, on the motion to suppress, Stamos testified that he received a phone call from the defendant’s attorney, Julius Sherwin, and that Sherwin had inquired whether Raddatz was in the custody of the State’s Attorney for the purpose of giving a statement concerning a homicide. Stamos then called the defendant into his office and handed the phone to Raddatz so that the defendant could talk to his attorney. Stamos further testified that after the defendant had concluded his conversation with Sherwin he inquired of Raddatz whether he still wished to make a statement, warning Raddatz that he didn’t have to make a statement and that anything he said could be used against him. Raddatz stated that he understood that he didn’t have to make a statement. The defendant then made a statement that was taken down by a court reporter and signed by Raddatz. This written confession, substantially the same as the oral one, previously given at the police station, was the subject of the defendant’s motion to suppress.

Officer Motzny testified that he stood alongside of Raddatz during the defendant’s conversation with his attorney. He further testified that the conversation lasted about three minutes, and that he heard the voice at the other end state in a loud manner that Raddatz shouldn’t tell the State’s Attorney anything. Officer Motzny stated that when Stamos warned the defendant that anything he said could be used against him Raddatz answered that he wanted to tell the truth.

Edward Horsky, an Assistant State’s Attorney, testified that he was present at the transcription of the defendant’s written confession; and that prior to the transcribing of the confession he had asked Raddatz whether Sherwin had told him that he didn’t have to say anything, and the defendant had answered affirmatively.

Julius Sherwin, testifying on behalf of the defendant, denied that he had participated in a phone conversation with the defendant on January 14, 1966. He said he didn’t recall any conversation with Stamos. He said the first knowledge he had that Raddatz, whom he had previously represented, was in custody, was at 5:30 p. m. of that particular day when he received a phone call from Nancy Jurkowski. The defendant denied that he had talked to his attorney while he was at the office of the State’s Attorney. The defendant further testified that he had no idea why he was taken to the office of the State’s Attorney because he had already confessed at the police station, and he thought “. . . that would be it.”

The State, at the pretrial hearing, in its brief, and again at oral argument, conceded that the oral confession given by the defendant at the police station would not be admissible in evidence against the defendant because it was given in circumstances which failed to comply with the warnings enunciated by the Supreme Court in Miranda v. Arizona, 384 US 436 (1966). The State contends, however, that the trial judge erred when he concluded that a prior inadmissible confession in and of itself renders any later confession, constitutionally obtained, inadmissible. The State argues that the Supreme Court in Miranda and other cases has clearly rejected such an analysis.

We have been favored by careful findings of fact and conclusions of law made by Judge Irwin N. Cohen. In summing up the evidence, the trial judge found that the confession given at the Shakespeare Avenue Police Station was not surrounded by the warnings required by Miranda. The trial judge concluded that even if Stamos’ recollection was correct, that the defendant had talked to his attorney prior to giving the written confession and had also been warned of his constitutional rights, the written confession still should be suppressed. The trial judge concluded that the warning had come too late to dissipate the effects of the earlier interrogation at the police station. The judge rejected the State’s theory that the defects of the original confession were cured by the defendant’s conversation with his attorney and by the giving of the correct warnings. The judge reasoned that the warnings would be of little use after the defendant had already confessed at the police station because Raddatz might well feel, “ What use is a lawyer? What good is a lawyer now? What benefit can a lawyer tell me? I have already told the police everything?’ ” The trial judge further concluded that what happened in the State’s Attorney’s office “ . . . was merely a formalizing, a setting down almost as a scrivener does, what had already taken place at Shakespeare Avenue Station.”

In Miranda the United States Supreme Court announced certain basic guidelines for the use of procedural safeguards to secure the Fifth Amendment rights of a suspect subject to custodial interrogation: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently.” 384 US at Page 444. The court further held that a heavy burden rests upon the State to demonstrate that the defendant has knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. A suspect must make an intelligent decision to waive his constitutional privilege not to talk to the police, and to make such a decision the suspect must be fully apprised of the extent of his Fifth Amendment rights. The suspect must be made aware of the privilege so that a subsequent confession becomes an expression of free choice rather than a product of the inherent pressures of the interrogation atmosphere. The suspect must be made fully aware of the consequences of foregoing the privilege in a particular situation because, “It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege.” 384 US at Page 469.

We find no merit to the State’s position in the instant appeal that the trial judge erred in applying an absolute standard that a prior inadmissible confession in and of itself renders a subsequent constitutionally sound confession inadmissible. The judge did not apply such a standard to the facts of the instant case. It is apparent to us that the trial judge instead relied upon the Supreme Court’s decision in Westover v. United States, 384 US 436 (1966), a companion case to Miranda, in deciding to suppress the defendant’s confession. The State argues, however, that the written confession obtained in the State’s Attorney’s office was admissible under the authority of Westover, and that the trial judge departed from the precepts of that case in suppressing Raddatz’ confession. We cannot agree with this contention.

In Westover, the suspect was arrested by local authorities and was held in custody for about fourteen hours. He was questioned periodically throughout this period of time. The suspect, Westover, was then turned over to the FBI for questioning, the questioning being carried out in the same physical surroundings used by the local authorities. The local police had not warned Westover during their interrogation of him of his constitutional rights. Prior to their questioning of the suspect, the FBI agents warned Westover concerning his rights under the Fifth Amendment. The FBI obtained written confessions from Westover which the Supreme Court ruled were inadmissible against him. The court held that although proper warnings were eventually given to Westover they came, as far as the suspect was concerned, at the end of the interrogation process. The FBI was, in effect, the beneficiary of the pressures applied by the local authorities. The court held that because the FBI interrogation had been carried out in the same location as that previously used by the local authorities and had followed immediately upon the questioning by the local authorities the giving of the proper warnings by the FBI was not sufficient to protect Westover’s Fifth Amendment privilege. Under the circumstances an intelligent waiver by the suspect of his Fifth Amendment rights could not be assumed.

We believe that the trial judge properly applied the standard announced by the Supreme Court in West-over to the facts in the instant case. The judge concluded that the State’s Attorney was the beneficiary of the cornpelling pressures previously applied by the police at the Shakespeare Avenue Station, as the FBI had been the beneficiary of the pressures applied by the local authorities in Westover. He further concluded that under the factual circumstances of the instant case the State’s Attorney and the Police Department could not be considered to be separate authorities sufficiently separated in time and place to render the written confession sufficiently insulated from the previous oral one. The record reveals that Raddatz was taken immediately to the office of the State’s Attorney after he had made his oral confession at the police station. At the State’s Attorney’s office he essentially repeated his previous confession. These facts clearly support the trial judge’s conclusion that what happened at the State’s Attorney’s office was merely a “formalizing” of what had happened earlier at the police station. The evidence adduced at the hearing supported the trial judge’s conclusion that under the authority of Westover warnings alone, under the circumstances, were not sufficient to protect Raddatz’ Fifth Amendment privilege.

The State argues that by warning the defendant of his constitutional rights and by allowing him to talk with his attorney it had done all that it could to dissipate the inherent pressures created at the police station, and to protect the defendant’s constitutional rights. We cannot agree with this contention. Although we may assume, arguendo, that the defendant was given an opportunity to talk with his attorney at the office of the State’s Attorney before he confessed, this conversation was carried on in the presence of the same officer, John Motzny, who had earlier been the recipient of the unlawful confession. In Miranda, the Supreme Court held that a suspect is entitled to the presence of an attorney during the interrogation process to assure the protection of his Fifth Amendment rights.

Eaddatz testified that he felt that after he had given the oral confession at the police station no more would be required of him. In other words, he testified that he felt that the oral confession had conclusively established his guilt. The trial judge was entitled to believe this testimony. If a suspect is to intelligently waive his Fifth Amendment rights he is entitled to know the scope of the amendment’s protection at the time he is being interrogated. In the absence of this knowledge of the consequence of his prior confession, Eaddatz’ waiver of rights cannot be considered one intelligently made. Williams v. United States, 328 F2d 669, 673, (5th Cir, 1964.)

It seems to us that the basis of both the Miranda and Westover decisions was the concern of the Supreme Court that any decision by a suspect to waive the Fifth Amendment privilege should be one that is intelligently and understandingly made. Unless the State can carry its heavy burden of showing that a suspect’s waiver is based upon an informed judgment, the confession obtained will be assumed to be the product of the inherent compulsion of in-custody interrogation. We have concluded that the State, in the instant case, has failed to carry its burden of showing that Eaddatz intelligently decided to waive his Fifth Amendment rights prior to giving the written confession at the office of the State’s Attorney.

The State relies heavily on Lyons v. Oklahoma, 322 US 596 (1944); United States v. Bayer, 331 US 532 (1947); and People v. Myers, 35 Ill2d 311, 220 NE2d 297 (1967). In Lyons, unlike the instant case where the second confession followed almost immediately upon the first inadmissible one, the second confession was obtained twelve hours after the earlier inadmissible one. Furthermore, the suspect gave his second confession to different authorities in different surroundings; whereas, in the instant case, Eaddatz gave his second confession to ostensibly the same authorities who had received the first inadmissible one. Also, in Lyons, none of the officers charged with having coerced the original confession were present at the time the second one was given. Officer Motzny, the recipient of the first confession, accompanied Raddatz to the office of the State’s Attorney. In Bayer the evidence showed that there was a lapse of six months between the taking of the two confessions. Furthermore, the suspect was not under arrest during this six month period. We conclude that Bayer and Lyons are inapplicable on the facts. We also point out that these two cases were decided prior to the Supreme Court’s decision in Miranda and were decided primarily on the issue of coercion in the Due Process sense.

In Myers the Illinois Supreme Court pointed out that Miranda and Escobedo (Escobedo v. State of Illinois, 378 US 478 (1964)) were not applicable to the facts presented for review because those decisions were not to be applied retroactively. The court in Myers decided that the second confession was voluntary on the basis of Lyons, a case we have already decided to be inapplicable on the facts to the instant case. For the foregoing reasons we have concluded that the Myers decision is not controlling of our disposition of the instant case.

We adopt the statement made by Judge Learned Hand in United States v. Gottfried, 165 F2d 360 (2d Cir, 1948), “Whether a confession is voluntary depends upon the facts that surround it, and the judge’s decision is final as to its competence except in those cases, of which certainly this is not one, in which his finding of fact is untenable.” At Page 367. See also, People v. Myers, 35 Ill2d 311, 320, 220 NE2d 297.

Where on the trial of a criminal case a confession of the defendant is offered in evidence, it becomes necessary for the trial court to determine as a preliminary question of fact whether the confession was freely and voluntarily made. If the confession offered in evidence follows an improperly obtained admission then it is for the trial judge to determine, whether the previous coercive influences have been sufficiently dissipated to insure that the confession offered in evidence is the product of the free will of the defendant, and has not been obtained in abrogation of the defendant’s Fifth Amendment rights. In so doing, the court is necessarily vested with a large discretion that will not be disturbed on appeal unless clear abuse is shown. People v. Hall, 38 Ill2d 308, 231 NE2d 416.

Here a careful, cautious and experienced judge, determined that the coercive pressures of the in-custody interrogation at the police station had not been adequately dispelled at the time that Raddatz gave his second confession. Therefore, he concluded that the defendant’s second confession had not been understandingly and voluntarily made, and he decided to suppress it. We hold that the order entered suppressing the confession was justified. It is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE MCNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Chester Turner, Defendant-Appellant.
    Gen. No. 51,360.
    First District, Second Division.
    February 6, 1968.

      Bellows, Bellows & Magidson, and Herbert Barsy, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

Defendant, Chester Turner, appeals from a conviction by jury for the crimes of rape and robbery. He seeks a reversal contending that he was not proved guilty of the crimes charged beyond all reasonable doubt; that the court erred in allowing into evidence a sketch drawn by a police artist from a description supplied by prosecutrix; in allowing into evidence certain testimony of the arresting officer; in admitting testimony concerning defendant’s silence during an accusatory statement by prosecutrix ; and in refusing to suppress certain evidence seized from the defendant.

On November 26,1964, at about 11:30 p. m., the prosecutrix, 32 years old and employed as an operating room supervisor at a hospital, was returning home from a hockey game. She was walking east from the bus stop at Cottage Grove Avenue on the south side of 60th Street in Chicago. She observed a white, late model automobile which she “thought was a Chevrolet or something like it.” Subsequently, a police bulletin described the car as an Oldsmobile or Buick. The car passed her, then pulled to the curb a short distance ahead. A man whom she subsequently identified as the defendant, Chester Turner, got out of the car and walked toward her with his right hand in his pocket and told her not to cry out or make a sound; that he was not going to hurt her. He told her that “he needed money, that he needed a fix,” and that he had a $50 to $60 a day “habit.” He took $4.35 from her purse, all the money she had. He then forced her at gunpoint to walk east along Drexel Boulevard and through an empty lot, then along a fence to avoid the lights of a passing automobile. He walked behind her, with the gun at her head or to the side. He then marched her south through the alley, into a yard, and to the rear of a darkened three-story house, holding the gun at her side. He raised the gun to the back of her head and told her that he hated white people because they had been the cause of all his trouble. At this time she heard the gun click. A light went on in the house and the man forced her into another yard across the alley. There he told her to take of her coat and lie down upon it on the ground. He then forcibly raped her. As he left the yard he told her she should not cry out or move or he would kill her. After being rebuffed at one apartment where she sought assistance, she encountered a special policeman of the University of Chicago whom she told of the attack and who summoned the Chicago Police. She described her assailant to the police as a Negro, male, 25 to 30 years of age, five feet ten to six feet, medium build, wearing a white or beige carcoat, hat and dark trousers. She also said that her assailant had medium color, rough skin. Defendant does not have rough skin. She also described the kind of gun carried by assailant.

After being examined at the hospital, she pointed out some cars for the police officers and looked at some photographs at the police station. On December 1st, 1964, she gave a description of her assailant to a police artist who composed a sketch subsequently admitted into evidence. In the early morning of December 14, 1964, defendant, Chester Turner, was stopped by Chicago Police officers for traffic violations. Since he had no driver’s license, the officers transported him to the district police station to post bond. Prior to taking him to the station an officer searched him and found a .38 revolver. Defendant stated that he carried the gun because he often carried large sums of money from his restaurant. At the station one of the arresting officers noted that defendant fitted a description of a man wanted for rape and robbery. The complainant was notified and brought to the station where a lineup of seven men was held, from which she identified Chester Turner as her assailant.

At a preliminary hearing in March, 1965, prosecutrix was asked if defendant was the man who assaulted her and she replied, “I believe it is.” She also testified at this hearing that her assailant drove “a white car, a large one, to me, I wasn’t sure, I’m not familiar with cars.” At trial she testified “I really made up my mind that it was a Chevrolet afterwards, when I had time to think about it.” She also testified that the gun taken from the defendant “looked like” the gun which her assailant carried.

On behalf of defendant, four witnesses testified that he had an excellent reputation for being a peaceable and law-abiding citizen. In addition, defendant’s cousin, his brother, his girl friend, a hotel clerk and defendant testified to an alibi. At 8:00 or 8:30 p. m. on November 26th, defendant and his brother left the home of defendant’s cousin, Ollie Gamblin. They picked up defendant’s girl friend, Mary Snow, at about 9:00 p. m. They returned to get Gamblin, then all went to a tavern in the 1100 block on Kedzie Avenue, where they remained until after midnight. Defendant and Miss Snow went to a hotel at 48th and Indiana Avenue where they registered some time after midnight. They remained in the hotel until the following morning when Turner took her home and went to his place of business. The hotel desk clerk identified a hotel registration card, subsequently admitted into evidence, which showed that “Mr. and Mrs. Chester Turner” registered at the hotel some time between midnight on November 26th and 8:00 a. m. on November 27th. Separate time sheets maintained by the hotel which would have indicated the exact time of registration had been destroyed. The hotel clerk also testified that she recognized defendant as having registered that night, having seen him on other occasions.

Defendant also testified that he was 28 years old, married and the father of three children; that he operated a restaurant which employed nine people; that he had never been in any trouble with the law before.

There is no dispute as to the fact that prosecutrix was raped and robbed.

In urging that he was not proved guilty beyond all reasonable doubt, defendant concedes that in certain cases a single positive identification is sufficient to sustain a conviction, but argues here that the testimony of the prosecutrix was not sufficiently clear and convincing to warrant the jury’s finding him guilty in the face of his evidence of alibi. The adequacy of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the jury, sitting as triers of fact with the superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor while on the witness stand. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963); People v. Evans, 25 Ill2d 194, 184 NE2d 836 (1962). By any tests or standards applied, the testimony of prosecutrix was not vague, doubtful or uncertain. She described in some detail her assailant, the automobile, and the entire incident. We agree with the State that she was a good observer who remembered in considerable detail what she had seen. Furthermore, out of a police lineup of seven men, she picked defendant as her assailant. Her uncertainty as to the model and exact color of assailant’s car and her description of his skin as being “rough” went only to her credibility as a witness and were matters to be taken into consideration by the triers of fact. The fact that assailant told prosecutrix that he was an addict in need of a “fix” while defendant was not a user of narcotics was another matter going to the credibility of the witnesses to be taken into consideration by the jury. The defendant cites People v. Cullotta, 32 Ill2d 502, 207 NE2d 444 (1965), for support that the identification in the instant case is vague, doubtful and unconvincing. In the cited case, defendant was identified by two policemen who had a fleeting glance of him in a store as they drove by in their patrol car. It is not in point in the instant case where prosecutrix had adequate opportunity to observe her assailant during her ordeal. The jury had before them the alibi defense testified to by defendant and the several other witnesses. The jury concluded that the defense was not worthy of belief, and we are unable to state that such a conclusion is erroneous in view of the clear and convincing testimony of prosecutrix.

Defendant contends that the trial court erred in allowing into evidence a sketch drawn by a police artist from a description given by the prosecutrix in that the sketch constituted hearsay evidence. “Hearsay evidence is testimony in court or written evidence of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” McCormick, Law of Evidence, § 225; People v. Carpenter, 28 Ill2d 116, 190 NE2d 738 (1963). Hearsay evidence is inadmissible even though it is in written form. Further, where a witness has no personal knowledge of the facts but his knowledge is derived entirely from information given by another, his testimony is incompetent and inadmissible as hearsay. People v. Grizzle, 381 Ill 278, 44 NE2d 917, 920 (1942).

In the case at bar, the sketch drawn by the police artist is his written out-of-court belief as to the likeness of the assailant. Further, it is not his belief based on what he had observed but his belief based on what he had been told by the prosecutrix. Nor does an artist’s sketch based upon the observations of another amount to a photograph. As stated in United States v. Zurita, 369 F2d 474, CA 7th Cir (1966), “drawing is selective and interpretive, and an artist, even when attempting to copy or to work from another’s direction, is not merely a stenographer with a peculiar system of shorthand. His work contains and reveals his impression from information given to him.” The introduction of the sketch into evidence was improper.

Defendant also urges that the trial court erred in permitting officer Malinowski to testify that he recognized defendant from a description in a “wanted” bulletin; that the description “matched the gentleman that is in the courtroom now”; and that he informed the detectives that “we had a man in custody that matched the description of the man wanted.” It was error to permit the officer to testify that Turner matched the complainant’s description of her assailant. That was testimony that only she could give. Allowing him to testify that the defendant looked like the sketch amounted to allowing him to state a conclusion based upon the initial conclusion of a third party. It also violated the rule against hearsay evidence. The testimony of the officer amounted to an improper corroboration of the complainant’s testimony identifying defendant as her assailant. Nor can the error in admitting the testimony be regarded as harmless in view of the fact that defendant was identified by but one witness. People v. Wright, 65 Ill App2d 23, 212 NE2d 126 (1965); People v. Lukoszus, 242 Ill 101, 89 NE 749 (1909). The error in admitting the testimony was amplified by the prosecutor referring to it in argument to the jury.

State urges that the admission of hearsay evidence is harmless error when it is only cumulative in nature and where there is sufficient other evidence to prove the point involved. People v. DeBerry, 62 Ill App2d 323, 211 NE2d 26 (1965). Where evidence is conflicting and there is incompetent and prejudicial testimony in the record, the court can not hold that the jury probably acted on the competent evidence only. People v. Rogers, 348 Ill 322, 180 NE 856 (1932). The introduction of the hearsay and the conclusionary testimony, written and oral, constitutes more than harmless error and as such was prejudicial to the defendant and prevented him from receiving a fair trial.

Since we are remanding the cause for a new trial it will be necessary to discuss the other points raised by defendant.

Defendant contends that the trial court erred in admitting evidence concerning defendant’s silence at a time when prosecutrix made a statement accusing defendant of having raped and robbed her. The prosecutrix testified at trial that, after viewing the lineup and identifying defendant as her assailant, she was taken into another room, and in the presence of defendant and detectives Wallenda, Spellar, and Cole, she gave an oral statement that on the night of November 26th she had been assaulted and robbed by Mr. Turner. She further testified that defendant said nothing; “that he didn’t make a sound.” Detective Spellar also testified that defendant remained silent during the accusation by the prosecutrix. The officer further testified that, after she left the station, defendant denied knowing or ever having seen her.

Defendant points out that a footnote in Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed2d 694 (1965), states that the prosecution may not use at trial the fact that he stood mute in the face of accusation. But Johnson v. New Jersey, 384 US 719, 86 S Ct 1774 (1966), held that Miranda would apply only to trials begun and cases commenced after it was announced. Nor is the Miranda decision applicable to the retrials of cases, the first trial of which commenced prior to the date of that decision. People v. Worley, 37 Ill2d 439, 227 NE2d 746 (1967). And our Supreme Court in People v. Aughinbaugh, 36 Ill2d 320, 223 NE2d 117 (1967), decided subsequent to Miranda, held that the “tacit admission” rule obtains in this State, though such evidence should be received with caution and only when the conditions upon which it becomes admissible are clearly shown to exist. An admission may be implied from the conduct of the party charged with a crime who remains silent when one states in his hearing that he was concerned in the commission of the crime, when the statement is made under circumstances which allow an opportunity to him to reply where a man similarly situated would ordinarily deny the imputation. People v. Bennett, 3 Ill2d 357, 121 NE2d 595 (1954). There is nothing in the record to indicate that defendant’s silence in the instant case was induced by such circumstances as fear of bodily harm, physical pain and suffering, threats or advice of counsel. It was an affirmative accusation by prosecutrix against defendant, which under the circumstances, called for a spontaneous denial by defendant. The cases cited by defendant in which the admission by silence was held inadmissible are distinguished clearly from the instant case. In People v. Hanley, 317 Ill 39, 147 NE 400 (1925), defendant responded to an accusation of guilt contained in a confession of a codefendant by telling the codefendant to keep still and by saying, “it will take twelve men to try me.” In People v. Bennett, supra, defendant had asked for counsel and had denied participation prior to standing mute during a codefendant’s confession. In People v. Kozlowski, 368 Ill 124, 13 NE2d 174 (1938), prior to his silence during an accusation, defendant had been ordered to “keep his mouth shut,” and had denied participating in the crime charged. In the instant case none of these circumstances were present, nor did defendant’s subsequent denial destroy the admissibility of his prior silence. It was not error to admit evidence of defendant’s silence in the face of the complainant’s accusation.

Defendant finally contends that the court erred in refusing to suppress evidence seized from the defendant. Officer Malinowski testified that he and another officer observed the defendant driving 35 miles per hour in a 25 mile per hour zone at about 12:30 a. m. As they pulled defendant over to the curb, they observed that the vehicle had no rear license plate properly displayed, although the plate was propped up in the rear window. After he had been stopped, they also noted that one of the headlights was burned out. After informing defendant of these violations they asked to see his driver’s license. But he handed them instead a traffic ticket on which the date for court appearance had expired. At this point, officer Malinowski informed defendant that they would have to transport him to the district station to post bond. The officer asked defendant if he had any weapons. Turner replied that he had, and the officer took from his suit coat a .38 revolver, which was admitted into evidence. It is true that a mere traffic violation without any other additional circumstances will not usually justify a search of the car. But in view of the circumstances of this arrest, and after the defendant informed the officers that he had a weapon, it would have been foolhardy on their part to allow him to keep the gun. The officers were justified in searching defendant for their own protection before taking him to the police station to post bond for the traffic offenses. People v. Thomas, 31 Ill2d 212, 201 NE2d 413 (1964); People v. Zeravich, 30 Ill2d 275, 195 NE2d 612 (1964). The gun properly was admitted into evidence.

For the reasons stated above, the judgment of the trial court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

BURKE, P. J. and LYONS, J., concur.