author: Mr. JUSTICE GOLDBERG

text:
    Anita Burke, Individually and as Admrx. of the Estate of Mark Joseph Burke, Plaintiff, v. Sky Climber, Inc., Defendants.
    Sky Climber, Inc., Third-Party Plaintiff-Appellant, v. The Chicago Housing Authority, Third-Party Defendant-Appellee.
    (No. 57312;
    First District (1st Division) —
    July 23, 1973.

      Thomas W. Dempsey, Alvin E. Domash, and Hugh C. Griffin, all of Chicago, (Lord, Bissell & Brook, of counsel,) for appellant.
    Jay A. Canel, Erwin I. Katz, and Joseph E. Fitzgerald, all of Chciago, (Canel & Canel, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Anita Burke (plaintiff) brought action, individually and as administrator of the estate of her late husband, against Sky Climber, Inc. The latter filed a third-party action against the Chicago Housing Authority (CHA). On motion of CHA, the court dismissed the third-party complaint, as amended. Sky Climber appeals.

Plaintiff's amended complaint against Sky Climber alleged that the decedent was employed as a tuck-pointer by CHA. Sky Climber was in the business of manufacturing scaffolding equipment and systems. While decedent was performing his work on a building owned by CHA, a cable on the scaffold, manufactured by Sky Climber, broke and caused his death.

Counts I and III of plaintiffs amended complaint charged Sky Climber with negligence in:

A. Designing, manufacturing, assembling and distributing a scaffold system so as to cause death of decedent;

B. Failing to equip said scaffold with safe and adequate cables;

C. Failing adequately to inspect the scaffold before selling same to CHA;

D. Failing adequately to inspect the cables;

E. Failing adequately to test said scaffold before selling to CHA;

F. Failing adequately to test the cables on the scaffold system before selling same to CHA;

G. Failing to warn decedent of the defective condition of the cables;

H. Failing to equip the scaffold system with safe and adequate cable guides.

Count II of plaintiff s amended complaint against Sky Climber alleged a strict liability theory in that the scaffold manufactured, distributed and sold by Sky Climber was defective and unreasonably dangerous and caused decedent’s death.

The second amended third-party complaint filed by Sky Climber seeking indemnity from CHA alleged that Sky Climber had manufactured and sold scaffolding equipment to CHA. This equipment had been out of the possession and control of Sky Climber for several years prior to the accident and was in the sole possession and control of CHA. Sky Climber had furnished instructions to CHA concerning proper maintenance and care of the equipment. It alleged that CHA was guilty of independent acts of primary and active wrongdoing and negligence which caused death of decedent as it:

1. Failed properly to maintain the equipment so as to make it defective and dangerous;

2. Failed to follow specific instruction manuals furnished with the equipment so as to make it defective and dangerous;

3. Permitted the equipment to become deteriorated, worn down and defective despite warnings and instructions from Sky Climber as to proper maintenance;

4. Failed to replace important parts of the equipment which had become worn down and deteriorated due to reasonable wear and tear despite warnings and instructions from Sky Climber as to how and when to replace these parts;

5. Failed to inspect important parts of the equipment which had become worn down and deteriorated due to reasonable wear and tear despite warnings and instructions from Sky Climber as to how and when to inspect these parts;

6. Failed to warn, instruct and supervise its agents, servants and employees as to how and when to inspect and replace important parts of the equipment which became worn and deteriorated from reasonable wear and tear despite warnings and instructions from Sky Climber;

7. Misused the equipment so as to make it defective and dangerous despite directions and instructions from Sky Climber;

8. Created a new and defective scaffold by its own acts, by misuse of the scaffold and its parts and by failure to maintain, inspect and repair the scaffold despite warnings and instructions by Sky Climber;

9. Was otherwise careless and negligent and guilty of wrongful misconduct in respects unknown to Sky Climber.

The third-party complaint therefore alleged that the conduct of Sky Climber was technical or passive misconduct while CHA was thus guilty of active negligence and misconduct, and more culpable wrongdoing.

In this court, Sky Climber contends that it is entitled to a trial on the merits if the pleadings show a possibility that its misconduct was less culpable than that of CHA; the order of dismissal must be reversed in that the pleadings show a possibility that Sky Climber could be proven guilty of passive negligence and CHA of active negligence; and Sky Climber’s culpability under a strict liability theory would not preclude its action over for indemnity on a theory of active-passive misconduct. Sky Climber also contends that the decision in Lindner v. Kelso Burnett Electric Co., 133 Ill.App.2d 305, 273 N.E.2d 196, cited and relied upon by the trial court in reaching its decision, does not support the order appealed from.

CHA argues in opposition that Sky Climber is guilty of active negligence as a matter of law; as an active tort-feasor it is therefore not entitled to indemnity and no act by CHA can impose liability on Sky Climber. It also urges that Sky Climber has no right of indemnity from CHA in connection with plaintiff’s claim of strict liabUity because CHA was not a seller or distributor of the scaffold; although Sky Climber was in the distributive chain, CHA was not; and, finaUy, fault-weighing concepts should not be applied as a basis for indemnity in strict liability cases.

Both sides have assisted the court with thorough and carefully written briefs and with helpful oral argument. Sky Climber opened the argument with a statement of three general principles, two of which are readily acceptable. The first valid principle is that the allegations in plaintiff’s complaint should not be viewed by the court as the sole basis for determination of the legal sufficiency of the third-party complaint. (Trzos v. Berman Leasing Co., 86 Ill.App.2d 176, 182, 229 N.E.2d 787.) The second basic principle is the general rule that the weU pleaded allegations of the third-party complaint, as with other similar pleadings, are to be taken as true by virtue of the motion made by CHA to strike and dismiss. Holiday Magic Inc. v. Scott, 4 Ill.App.3d 962, 282 N.E.2d 452 and decisions therein cited.

The third general principle advanced by Sky Climber creates a slight problem which is primarily one of semantics. Sky Climber states that a third-party complaint for indemnity should not be dismissed unless it appears that in no event would the third-party plaintiff have an action over against the third-party defendant. It is correct that the phrase “in no event” was used by the Supreme Court of Illinois in precisely this type of situation. (Miller v. DeWitt, 37 Ill.2d 273, 287, 288, 226 N.E.2d 630.) It is also true that rather similar phrases have been used by reviewing courts of IUinois in describing the basis upon which we should approach analysis of the sufficiency of a third-party complaint for indemnity upon interposition of a motion to dismiss. In Gillette v. Todd, 106 Ill.App.2d 287, 294, 245 N.E.2d 923, the court stated the requirement as being allegations in the third-party complaint “which disclosed a possibility of recovery.” In Blaszak v. Union Tank Car Co., 37 Ill.App.2d 12, 21, 184 N.E.2d 808, the court, quoting from Lane v. Celanese Corp., 94 F.Supp. 528, 531, 532, stated the test as requiring that the third-party complaint not be dismissed for insufficiency “* * * except where it appears to be a certainty * * *” that the pleader would be entitled to no relief under any facts which could be proved in support of the claim.

Rather than adopt any of these varying tests, we prefer to use the same standard applicable in considering the deficiency of any pleading as against a motion to dismiss. This test, with which lawyers of this jurisdiction are long familiar, is that # “ a third-party complaint will be dismissed if-it fails to state a cause of action by the defendant against the third-party defendant.” (Muhlbauer v. Kruzel, 39 Ill.2d 226, 230, 234 N.E.2d 790.) Note also further analysis of this question in 39 Ill.2d at 231 and the excellent comment upon the problem in Lindner v. Kelso Burnett Electric Co., 133 Ill.App.2d 305, 306, 273 N.E.2d 198. See also Maas v. Ottawa Stockdale Fertilizer, Inc., 9 Ill.App.3d 33, 35, 291 N.E.2d 514.

Proceeding now to analyze the sufficiency of the third-party complaint upon this basis, we must consider first Sky Climber’s contention on the negligence phase of the case that plaintiffs complaint contains several allegations of negligence which could be merely passive and that upon trial these might be the only charges which plaintiff could sustain. Paragraph A of plaintiffs complaint charges in general language that Sky Climber designed, manufactured, assembled and distributed that scaffold system in such manner as to cause the death of the decedent. The remaining paragraphs designated as “B” to “H” inclusive all use the verb “fail” in describing the activities of Sky Climber. On the other hand, Sky Climber points out that its third-party complaint contains certain charges against CHA which may be construed as active negligence such as misuse of the equipment in question so as to make it defective and dangerous despite directions and instructions from Sky Climber (Par. 7) and creation of a new and defective scaffold by its own acts and by misuse of the scaffold and its parts. Par. 8.

We cannot accept this exposition. We are impelled to agree with the position taken by CHA that Sky Climber is the manufacturer of the scaffold and therefore would be guilty of active negligence in connection with all of the allegations against it in plaintiffs complaint. Simple failure of a person in ordinary circumstances to discover a defect might be described as passive; but, in the type of situation shown here, where Sky Climber itself is the manufacturer, it follows necessarily that the basis of the liability would be the active creation of the defect in the process of manufacture.

As pointed out by CHA in its brief, a number of cases in this jurisdiction hold that the person who builds or assembles a scaffold improperly is guilty of active misconduct as against one whose relationship toward an injured party is passive as distinguished from active. In Miller v. DeWitt, 37 Ill.2d 273, 291, 226 N.E.2d 630, the Supreme Court quoted with approval from the language of the appellate court in Rovekamp v. Central Const. Co., 45 Ill.App.2d 441, 449, 195 N.E.2d 756, where the court pointed out that a party who is responsible for the scaffolding in a construction project is more culpable than a party who supervises and coordinates the entire project. The same language is cited in Jones v. McDougal-Hartmann Co., 115 Ill.App.2d 403, 407, 253 N.E.2d 581, where the court concluded that a subcontractor who ordinarily furnishes the equipment is generaUy an active party as compared to a contractor who exercises general authority over the entire project.

Nor can the force and effect of this principle be diverted from the situation at bar by Sky Climber on the theory that it did not actually assemble the scaffold at the site as in the situations above presented. The same theory was applied and the same result reached by the United States District Court in Lopez v. Brackett Stripping Co., Inc., 303 F.Supp. 669. In that case, plaintiff recovered from the manufacturer of a machine. An indemnity action over by the manufacturer against plaintiff’s employer for aUeged active negligence in maintenance of the machine was rejected by the court. The same theory was applied that neghgence in the manufacture of a product could not be classified as being of the passive variety.

Under this analysis, aU of the charges in the complaint of plaintiff against Sky Climber are of active neghgence. Thus, if plaintiff recovers a judgment against Sky Climber, it would necessarily be predicated upon active neghgence. This being true, it follows inevitably that Sky Chmber would not be entitled to indemnity as against CHA. The qualitative culpability of both parties in this type of situation could only be equal. Where the neghgence of a tort-feasor is active, there can be no recovery of indemnity regardless of whether the neghgence of the third-party defendant is classified as active or passive. (Gillette v. Todd, 106 Ill.App. 2d 287, 294, 245 N.E.2d 923). See also Stewart v. Mister Softee of Illinois, Inc., 75 Ill.App.2d 328, 221 N.E.2d 11, where the court formulated the general rule that “In a neghgence action a third-party complaint wih he only where the alleged neghgence of the third-party plaintiff is passive.” 75 Ill.App.2d at 330.

The able and experienced trial judge stated specifically that he relied upon the decision in Lindner v. Kelso Burnett Electric Co., 133 Ill.App.2d 305, 273 N.E.2d 198, in dismissing Sky Climbers third-party complaint. Upon careful analysis we agree with this position. In Lindner, plaintiff was employed by Economy, the third-party defendant. Defendant Kelso had furnished a hoist or scaffold which caused plaintiff’s injuries. This court affirmed a dismissal of the third-party complaint by Kelso against Economy, plaintiff’s employer. The court specifically held that the person who built and erected the scaffold was the active tort-feasor and that failure to inspect the scaffold, which was the only duty violated by Economy, was merely passive negligence. 133 Ill.App.2d at 309.

On the contrary, we must necessarily reject the contention of Sky Climber that Mierzejwski v. Stronczek, 100 Ill.App.2d 68, 241 N.E.2d 573, governs the case at bar. There, defendant leased a truck to plaintiff’s employer. The vehicle was allegedly defective. Plaintiff brought action against the lessor who sought indemnity from plaintiff’s employer. As pointed out by counsel for CHA, the situation there was different because plaintiff’s employer as lessee was required to maintain the truck. No such duty was imposed upon CHA by contract with Sky Climber in the case at bar. In addition, in the cited case, the truck was not manufactured by the lessor. Consequently the action of the court in Mierzejwski in permitting indemnity is not at all inconsistent with the contrary result in the case at bar. We conclude that the court acted properly in refusing indemnity with reference to the negligence aspects of the case at bar.

The next and last issue raised by Sky Climber pertains to those aspects of the third-party complaint which are concerned with indemnity regarding the alleged strict liability of Sky Climber to plaintiff. The theoretical basis for strict liability in connection with products has been stated many times commencing with Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182. Plaintiff’s complaint in Count II alleged that the scaffold system manufactured, distributed and sold by Sky Climber was defective, harmful and unreasonably dangerous. Under the Suvada doctrine,. the court recognized “the justice of imposing the loss on the one creating the risk and reaping the profit * # (32 Ill.2d at 619.) It is Sky

Climber’s theory here that it had legal right to bring an action over against CHA for common law indemnity. Sky Climber concedes here that no Illinois court has ever held that this type of action is permissible. But it urges “that there are neither practical nor theoretical nor policy reasons which should preclude such an action.” We cannot agree.

In our opinion, the basic underlying reasons of policy, as expressed in Suvada, should be operative here to prevent this type of indemnity. Sky Climber is the manufacturer and distributor of this product and therefore presumably the one who reaped the profits from its manufacture. Hence, the ultimate liability, if there be one because of a defective or unreasonably dangerous condition of the product when it left the manufacturers possession, should rest upon Sky Climber as creator of the product.

There is not a considerable amount of authority on this precise point in Illinois. However, in Texaco, Inc. v. McGrew Lumber Co., 117 Ill.App.2d 351, 254 N.E.2d 584, in a converse situation, plaintiff was hurt in a fall from a scaffold. The cause of his injuries was a defective plank which had been incorporated into the scaffold. Upon consideration of the distributive chain, indemnity was permitted in favor of the erector of the scaffold and against the company which had manufactured, or processed, and supplied the plank. In Noncek u. Ram Tool Corp., 129 Ill. App.2d 320, 264 N.E.2d 440, this court held that the manufacturer of a defectively dangerous electric drill could not obtain indemnity against the employer of a sheet metal worker who had been injured in using the drill. In that case, quite close to the situation at bar, the court held that there was no support for the contention that indemnity should be granted to the manufacturer.

In our opinion, the facts in the case at bar support the conclusion that the manufacturer of an instrumentality which is defective and therefore unreasonably dangerous when it leaves his possession cannot obtain indemnity for strict liability as against the employer of the person who later used the defective device.

It follows that the trial court acted properly in dismissing the third-party complaint of Sky Climber. The judgment is therefore affirmed.

Judgment affirmed.

EGAN and HALLETT, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. Lawrence Goodwin, Petitioner-Appellant.
    (No. 57876;
    First District (2nd Division) —
    July 24, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

STAMOS, P. J., took no part.


author: Mr. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fenton L. Robinson, Defendant-Appellant.
    (No. 55761;
    First District (5th Division) —
    July 27, 1973.

      Rehearing denied August 13,1973.

      Cornelius E. Toole, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Jonathan Gilbert, Elmer C. Kissane, and Frederic I. Chaimson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSES CHARGED.

Involuntary manslaughter. (Ill. Rev. Stat. 1967, ch. 38, par. 9 — 3(a).) Driving under the influence of alcohol. (Ill. Rev. Stat. 1967, ch. 95½, par. 144(47).) Negligent driving. Chicago, Ill., Mun. Code (1967), ch. 27, par. 255.

JUDGMENT.

After a bench trial, defendant was found guilty of involuntary manslaughter, and sentenced to a term of one to three years; guilty of negligent driving, and given a suspended fine of $100. The charge of driving while intoxicated was dropped during the trial.

CONTENTIONS RAISED ON APPEAL.

1. The court erred in denying defendant’s motion for a continuance to get the Alcoholic Influence Report which the prosecution failed to make available during the course of the trial.

2. The prosecution erred by withholding evidence of an Alcoholic Influence Report which was favorable to the accused.

3. The court erred by refusing to grant a new trial when the court was tendered an Alcoholic Influence Report as an exhibit attached to the motion for a new trial.

4. Defendant was denied a fair and full hearing in aggravation and mitigation when the court failed to order a presentence report upon motion of defense counsel.

EVIDENCE.

Barbara Brooks, for the State:

She was 28 years old and resided with her mother in Chicago at the time of the offense. At about 3:00 P.M. on Saturday, August 9, 1969, she and her mother went shopping at several stores on the south side of Chicago. Their last stop was the Ace Hardware Store at 75th Street near Vincennes. Her mother went into the hardware store, returning ten minutes later with three storm windows. She approached the driver’s side of the car which was parked at the curb to get the keys from the witness, then went to the rear of the car to put the windows in the trunk. The witness heard the trunk open, then heard a crash, she slumped over, her chest hit the steering wheel, and she fell out of the passenger side of the car and suffered various injuries. When she got up, she saw her mother lying in the street near the curb with her legs cut off. She saw defendant at the scene, asked him his name, but couldn’t understand anything he said because he just mumbled and grumbled. She smelled alcohol on his breath and noticed that he swayed and staggered when he walked. Her mother died upon arrival at the hospital. The car was forced over the curb and into a vacant lot by the force of the impact. There were no skid marks at the scene of the accident.

Tom McKenna, for the State:

He was a Chicago police officer assigned to the traffic division. At about 6:00 P.M. on Saturday, August 9, 1969, he received a call to proceed to an accident at 222 W. 75th Street. It was a bright, clear day and the streets were dry. He observed the victim’s Plymouth northwestbound over the curb in a parking lot. Defendant’s car was straddling the center line of the street facing east. The Plymouth was extensively damaged in the rear, defendant’s car in the front end. He saw no skid marks at the scene. When he asked defendant for an explanation of what had happened, defendant replied, “I am sorry. I don’t know, officer. I blacked out.” He noticed defendant had a cut on his chin but didn’t notice anything else unusual about him. Later under questioning at the station, defendant told him that a car had passed him on the left, cutting him off, he slammed on his brakes and then blacked out. The witness noticed an odor of alcohol on defendant’s breath, and defendant stated that he had consumed beer earlier in the day. Before defendant was taken to the station, he stated that he had not been drinking. The officer made out an alcoholic influence report but did not bring it to court or give a copy of it to the prosecutor. Both copies of it were turned over to the evidence technician who administered the breathalyzer test. The reading on that test was point zero six. Defendant was also given a balance test, walking test, turning test, a test of his ability to pick up coins, a speech test and a handwriting specimen. As a result of all tests, he felt that defendant was under a moderate influence of alcohol.

Fenton Robinson, on his own behalf:

He was an entertainer. On August 9, 1969, at about 3:00 P.M., he left work on the north side, ran some errands, and proceeded south on the Dan Ryan Expressway to 75th Street. As he was traveling west on 75th Street at about 30 miles an hour, he saw a Plymouth parked in the street. He attempted to pull around it, but as he did so, he was cut off by another car, hit his brakes, but still crashed into two cars that were parked behind the Plymouth. He blacked out at the time of the crash and his injuries required six stitches on his face. He had not stopped anywhere to have an alcoholic beverage prior to the accident. He had worked all day and was tired but didn’t fall asleep. His vision was obscured by the sun shining in his eyes. He was dazed by the accident and couldn’t remember how long he was unconscious, but remembered hitting his brakes before the crash. He did not remember talking to the officer in the street or Miss Brooks talking to him.

OPINION

Defendant maintains that it was error for the trial judge to deny his motion for a continuance requesting time to obtain the Alcoholic Influence Report from the police. After the charge of driving while intoxicated had been dropped, but during cross-examination of the officer about the tests he had run on defendant to determine his level of intoxication, counsel for defendant requested a copy of the Alcoholic Influence Report to complete his cross-examination. He stated that, even though the charge of driving under the influence of alcohol had been dropped, the officers testimony was being used to rebut defendant’s statement that he had had nothing to drink, and he should therefore have access to the report and be allowed to question the officer about it and offer evidence to the contrary. The judge replied that counsel had ample opportunity to subpoena the document prior to trial, and denied counsel’s motion to subpoena the document instanter. The court had also denied the earlier defense motion for a continuance for time to obtain the report. In denying the motions, the judge stated:

“The information you requested is not pertinent simply because all you are trying to do is show that this man may or may not have been intoxicated and that is not the issue here.”

The granting or denial of a continuance to obtain evidence or procure a witness is within the discretionary powers of the trial court. (People v. Allgauer, 114 Ill.App.2d 405, 408, 252 N.E.2d 671.) When reviewing the exercise of the court’s discretion, this court must determine whether defendant had acted diligently in his attempts to obtain the evidence (People v. Thomas, 4 Ill.App.3d 535, 537, 281 N.E.2d 447), whether the evidence would be material to the case and might affect its outcome (People v. Douglas, 130 Ill.App.2d 938, 942, 267 N.E.2d 43), and whether defendant has been prejudiced in his right to a fair trial. People v. Weaver, 8 Ill.App.3d 299, 304, 290 N.E.2d 691.

From the facts of the present case, it appears that defendant had ample opportunity to obtain the report prior to the time he asked for a continuance. Not only did he faü to seek the report through pre-trial discovery, but when given a week’s continuance during trial, he still did not request the document which at that time was of potential importance, since the charge of driving under the influence of alcohol had not yet been dropped. However, when his request for the report was finally made, that charge had been noUe pressed and the report might only have been moderately helpful to impeach the officer’s testimony on a purely coHaterai matter which could not have affected the outcome of the case since there was more than sufficient evidence to convict defendant of the other two charges. Thus, it is our opinion that the trial judge did not abuse his discretion, and his denial of defendant’s motion for a continuance did not deprive defendant of a fair trial.

Next, defendant argues that the prosecution itself was obliged to supply the Alcoholic Influence Report which was favorable to defendant. Defendant’s assertion is based on his belief that the report was material to the issue of his guilt. (Brady u. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194.) However, as we mentioned earlier, proof of a moderate effect of alcohol on defendant was not material to the issues on either of the two remaining charges. We conclude on this point that the State was not obligated to offer the report either as evidence or for perusal by defense counsel during trial.

Not only do we find that the evidence established defendant’s guilt beyond a reasonable doubt, but even if it were considered prejudicial for the State not to have furnished the report at trial, its failure so to do, under the circumstances of this case, was harmless beyond a reasonable doubt (by analogy to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824), and does not furnish ground for reversal.

Next, defendant asserts that the court erred by refusing to grant a new trial, as requested in defendant’s motion which had attached to it the Alcoholic Influence Report as an exhibit. Since, as we have concluded above, use of the report could not have affected the outcome of the case, defendant’s motion for a new trial was properly denied.

Finally, defendant maintains that the court denied defendant a full and fair hearing in aggravation and mitigation by failing to order a presentence report upon motion of defense counsel.

After finding defendant guilty, but before imposing sentence, the judge denied defendant’s request for a pre-sentence investigation by the probation department to determine defendant’s background. In denying defendant’s request, the judge permitted, instead, a hearing in mitigation which explored defendant’s family background and employment record to the full extent desired by defendant.

At the time of sentencing, the law did not require the trial judge to order a pre-sentence investigation, but if one was requested and denied, the court “should conduct a mitigation hearing and thereby give the defendant an opportunity to make known the things favorable to himself which he believes the investigation would have brought forth.” (People v. Smith, 62 Ill.App.2d 73, 80, 210 N.E.2d 574.) We believe that the hearing in mitigation conducted in the present case was more than adequate.

The judgments of the Circuit Court are affirmed.

Affirmed.

DRUCKER, P. J., and LORENZ, J., concur.

       A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.

       Defendant asserts he could have used the report to impeach the officer’s testimony; however, the report itself provides little basis for impeachment. Not only were the tests performed almost three hours after the accident, but they tend to confirm that defendant had been drinking prior to the accident, although, as would be expected by the time the tests were taken, the effect of the alcohol on defendant appeared to be slight. The officer stated during the trial, however, that the alcohol appeared to have a moderate influence on defendant.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Florence Phillips, Plaintiff-Appellant, v. Shell Oil Company et al., Defendants-Appellees.
    (No. 71-110;
    Fifth District —
    July 20, 1973.

      Rehearing denied August 22,1973.

      J. Emett Cassidy, of Hackensack, New Jersey, and Wagner, Conner, Ferguson, Bertrand & Baker, of Belleville, (Francis D. Conner, of counsel,) for appellant.
    Burroughs, Simpson & Wilson, of Edwardsville, for appellee Shell Oil Company.
    John T. Roach, of Alton, (Allen D. Churchill, of counsel,) for appellee Herman Wehmeyer.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Madison County, in an action brought by appellant Phillips against appellees Wehmeyer and the Shell Oil Company, charging that their negligence in the design, maintenance and operation of a service station resulted in injury to her.

The action was commenced by the filing of a complaint of March 3, 1965. The case was brought to trial in October of 1970. The jury at the conclusion of the evidence returned a verdict in favor of the plaintiff and against both defendants in an amount of $10,000. The jury, however, replied in the affirmative to a special interrogatory which asked, “Do you find from the evidence that at and immediately prior to the occurrence in question the plaintiff was guilty of any contributory negligence which was a proximate cause of said occurrence?” The court entered judgment in favor of the defendants notwithstanding the verdict on the basis of the answer to the special interrogatory. From the judgment, the plaintiff has brought this appeal.

The plaintiff, on April 1, 1964, came into the Shell Service Station on U.S. Highway 66 at Hamel. She was there to purchase the goods and services of the station. The station was designed by the defendant company and was operated by defendant Wehmeyer. The plaintiff was accompanied by her sister, her son and a friend of her son. The weather was clear and the sun shone.

The station itself faced south with the office area on the right side of the station and the garage, or bay area, on the left. The plaintiff and her sister entered the office area while the son and friend stayed with the auto to get it serviced.

Upon entering the station, the plaintiff noted a soda machine to her left and she and her sister decided to have a soda. When the plaintiff took out the soda, she was in front of the machine and facing west (towards the bay area). She did not look into the bay area although there was nothing to prevent her from so looking. She was aware that there was a bay area. The plaintiff next stepped to her left around the machine with her back to the front doorway which was in a held-open position. As the plaintiff stepped sideways to allow her sister to open a soda, the plaintiff stepped down a four to six inch step and fell, sustaining a fractured hip. She was facing the back of the station with her left side to the step. She did not look where she stepped. There was no obstruction to prevent her from seeing the step. The plaintiff at the time of the accident was fifty four years old with no defect in her eyesight.

The step, or drop off, extended the entire width of the station and was located at the separation of the office area and the bay area. There was no wall or partition along the step, but there was placed alongside the step the soda machine and various other display counters both in the office side and the bay side so as to form a sort of partition between the two distinct areas of the station. There was left open in the partition a walkway two and one half to three feet wide between the soda machine and the front doorway where the plaintiff fell. The floor of the inside of the station was painted the same gray color throughout. There was no defined doorway between the two areas and there was no guard rail or handrail, nor were there any warning devices or indicators of the step. The station was constructed according to the plans and specifications furnished by defendant Shell.

Plaintiff incurred $5291.08 of expense in the form of hospital bills, doctor bills and various associated medical expenses in the care and treatment of injury.

After her fall, the plaintiff was taken to Staunton Hospital where she underwent an operation wherein the hip was “pinned”. This operation was not successful and she was taken to Lutheran Hospital in St. Louis, Missouri, where she was once again operated upon approximately one week after the first operation. This second operation involved removing the nail and plate that had been placed in the hip in the first operation and in lieu thereof placing a key nail and two Knowles pins. Subsequently there was a third operation performed on the hip. Medical testimony indicated that because of the accident there was muscle weakness in the hip and that the plaintiff would have a permanent limp and that it was likely that she would require future medical treatment.

The plaintiff has in this appeal urged several specific points for reversal and they each shall be considered in the order presented.

The trial court excluded from evidence the testimony of Ronald L. Eilering, a registered and practicing architect in the State of Illinois. In a hearing outside the presence of the jury, the plaintiff elicited testimony of Mr. Eilerings qualification and his opinions concerning the defects of the design of the station including not only the location and identification of the step, but also the location of the “door”. The trial court at the conclusion of the hearing stated: “Although I find that he could testify as an expert, I think that it wouldn’t help the jury. So we are not going to qualify him as a witness”. The plaintiff, as her first point for reversal, contends that the trial court abused its discretion in excluding the offered testimony of a qualified expert witness.

The admission of expert testimony and the qualification of an expert witness is generally left to the discretion of the trial judge. (Park District of Highland Park v. Becker (1965), 60 Ill.App.2d 463, 208 N.E. 2d 621; Evanston Best & Co. v. Goodman (1938), 369 Ill. 207, 16 N.E.2d 131.) The general rule is that expert testimony is admissible when the subject matter is of such character that only persons of skill and experience in it are capable of forming correct judgments as to any facts connected therewith. (Schneider v. Kirk (1987), 83 Ill.App.2d 170, 226 N.E.2d 655; Nystrom v. Bub (1962), 36 Ill.App.2d 333, 184 N.E.2d 273.) Expert testimony on matters of common knowledge is inadmissible. (Hayes v. Place, 350 Ill.App. 504, 113 N.E.2d 178 and cases cited therein.) While there is a trend to admit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation (Miller v. Pillsbury, 33 Ill.2d 514, 211 N.E.2d 733), we cannot say whether the location and identification of a step and the location of a door are hazardous, is sufficiently complicated or difficult of comprehension and explanation, to hold that a trial court who heard the testimony, abused its discretion by denying expert testimony on the subject. We must determine, therefore, whether the physical factors involved in the location of a step are matters of common knowledge.

A case involving the location of steps and the question of whether this is a proper subject for expert testimony is Blackburn v. Tombling (1960), 148 Col. 161, 365 P.2d 243. (See also Chick v. Gilcrist (1911), 208 Mass. 183, 94 N.E. 276; Burton v. Horn & Hardart Baking Co. (1952), 371 Pa. 60, 88 A.2d 873, 63 A.C.2d 731.) In that case an architect testified that the location of certain steps in the defendant’s doorway constituted a dangerous condition. The Supreme Court of Colorado, en banc, determined that such testimony was error, stating: “There is no need for expert opinion with reference to facts involving commonplace occurrence.” We cannot state that the subject matter of the location of the step in the present case “is of such character that only persons of skill or experience in it are capable of forming a correct judgment as to any fact connected therewith”. (Mahlstedt v. Ideal Kighting Co. (1915), 271 Ill. 154, 110 N.E. 795; 31 Am.Jur.2d Expert & Opinion Evidence § 21.) Because the proffered testimony concerned a matter of common knowledge, it was properly excluded.

The plaintiff next urges that the court below erred in excluding evidence of a prior fall because that fall was notice to the defendants of the existence and nature of a hazardous condition. Although the evidence of other accidents is admissible in an action for negligence where it tends to show the common cause of the accidents to be a dangerous thing or condition of which the defendant had knowledge and that the thing shown to be the common cause contributed to the danger of the accident in the suit and where it was in the same condition as in the other accidents (Welter v. Bowman Dairy Co. (1943), 318 Ill.App. 305, 47 N.E.2d 739; Moore v. B. D. & C. R.R. Co. (1920), 295 Ill. 63, 128 N.E. 721), the admissibility of such evidence depends on the facts of each case. (Solomon v. The Fair (1962), 36 Ill.App.2d 188, 183 N.E.2d 588.) Because of the dearth of information in the record concerning the similarity of conditions at the prior accident and because the evidence, if admitted, would not have countered the jury’s conclusion that the plaintiff was contributorily negligent, we need deal no further with this issue. A judgment wiU not be reversed unless it appears that the error affected the outcome below (Baker v. Baker (1952), 412 Ill. 511, 107 N.E.2d 711), or where it appears that the result would most likely have been the same. (Jenkins v. Hechtman (1967), 83 Ill.App.2d 72, 226 N.E.2d 383; Shafer v. Northside Inn, Inc. (1963), 44 Ill.App.2d 86, 194 N.E.2d 5.) If indeed there were any error committed on this issue, it would not be reversible error.

The court refused to give plaintiff’s Instruction No. 16 which stated:

“Under the laws of the State of Illinois the one who prepares and furnishes plans and specifications for the construction of a commercial building to be used by the general public owes a duty to members of the public he might reasonably anticipate wiU use the building to exercise reasonable care to design the building so that it wiU be reasonably safe for use by such members of the public.”

The plaintiff asserts the failure to give this instruction was error.

There is no I.P.I. instruction which covers the duty of the supplier of plans and specifications for construction of commercial buildings. Plaintiff contends that since the instruction is a correct and clear statement of the law based on Laukkanen v. Jewel Tea Co. (1966), 78 Ill.App.2d 153, 222 N.E.2d 584, she is entitled under Merchant’s National Bank v. E. J. & E. Ry. Co. (1971), 49 Ill.2d 118, 273 N.E.2d 809, to give the instruction because it correctly states the law. The practice of paraphrasing the language of court’s opinions has been condemned by the Supreme Court, as it often leads to serious error (Bartosh v. Ryan (1951), 344 Ill. App. 214; Spiezio v. Commonwealth Edison Co. (1968), 91 Ill.App.2d 392, 235 N.E.2d 323), although it is not always error to do so. Because of the verdict and finding of the jury, we fail to perceive that the failure of the court to give the requested instruction could have been prejudicial error to the plaintiff if, in fact, it is error. The jury did find against the defendant Shell Oil and must, therefore, have been cognizant of the duties of that defendant as set forth in plaintiff’s Instruction #10 and #11 which state:

#10. The owner or occupant of property owes an invitee the duty to exercise ordinary care to keep the property in reasonably safe condition for use by the invitee.

#11. An invitee is a person who is upon the premises for a purpose connected with the occupant’s business by the invitation of the occupant. The invitation may be expressed or be implied by the circumstances under which the person enters the premises.

Plaintiff next asserts that the court erred in submitting defendant Shell’s special interrogatory to the jury and in entering judgment upon the special finding. There was no error in the submission of the interrogatory. Ill. Rev. Stat. (1963), ch. 110, §65, makes the giving of a special interrogatory mandatory when it is requested and is on a material fact. (Hollis v. Terminal R. Assn. of St. Louis (1966), 72 Ill.App.2d 13, 218 N.E.2d 231.) A special interrogatory must be given if it is upon an ultimate question of fact and is in proper form. (Golden v. Big Bear Foods, Inc. (1968), 102 Ill.App.2d 237, 243 N.E.2d 730; DeBolt v. Wallace (1965), 56 Ill.App.2d 380, 206 N.E.2d 469.) Plaintiff cannot but agree that the interrogatory submitted to the jury was on an ultimate question fact, but she does attack it as being slanted in form. However, the form of the interrogatory in the instant case is identical to that in Moyers v. Chicago & Eastern Illinois R.R. Co. (1963), 43 Ill.App.2d 316, 193 N.E.2d 604, where the court held that the refusal to submit the . interrogatory was reversible error. The trial court was obviously correct in submitting the interrogatory.

The trial court was also correct in entering judgment upon the special finding. It is well settled that an inconsistent special finding controls a general verdict (Borries v. Z. Frank, Inc. (1967), 37 Ill.2d 263, 226 N.E.2d 16, rev'g. 73 Ill.App.2d 128, 219 N.E.2d 737; Houston v. Leyden Motor Coach Co. (1968), 102 Ill.App.2d 348, 243 N.E.2d 293), and faffure to enter judgment upon the special finding in this situation is reversible error. (North Shore Sanitary Dist. v. Schulik (1957), 12 Ill.2d 309, 146 N.E.2d 25.) A trial court may set aside a special finding only when it is contrary to the manifest weight of the evidence. (Houston v. Leyden Motor Coach Co., supra; Peach v. Peach (1966), 73 Ill.App.2d 72, 218 N.E.2d 504.) Since there is evidence in the record to support the jury’s finding of contributory negligence, the trial court was required to enter judgment on the special finding.

The final contention of the plaintiff is that she is entitled to judgment against the defendant Shell OU Company in accordance with the manifest weight of the evidence. In view of the above conclusion, we do not accept the plaintiff’s contention. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.App.2d 494, 229 N.E.2d 504.) We cannot and do not find that the evidence viewed in its aspect most favorable to defendant Shell Oil so overwhelmingly favors the plaintiff that no contrary verdict upon that evidence could ever stand.

The judgment of the trial court is accordingly affirmed.

CRE.BS and JONES, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    Leslie J. Smith, Plaintiff-Appellant, v. The Town of Proviso et al., Defendants-Appellees—(The Town of Northfield, Intervenor-Appellee.)
    (No. 56872;
    First District (5th Division) —
    July 27, 1973.

      Mitchell J. Overgaard, of Chicago, for appellant.
    Francis A. Fanelli and Donald Hamilton, both of Melrose Park, for appellee the Town of Proviso.
    Samuel H. Young and John D. Cummins, both of Chicago, for intervenor-appellee the Town of Northfield.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Leslie J. Smith, an elector and taxpayer in Proviso Township in his own behalf and on behalf of other such electors and taxpayers, filed suit against the Town of Proviso, the Town Supervisor, the Town Clerk, the members of the Board of Town Auditors, and the County Clerk, questioning the constitutionality of the township form of government and the conduct of a special Proviso town meeting. Upon motion of an intervenor, Town of Northfield, plaintiff’s first amended complaint, which replaced his original complaint, was dismissed for the legal insufficiency of plaintiffs attack on the constitutionality of section 77 of the Township Organization Act relating to voting viva voce or by standing to be counted. (Ill. Rev. Stat. 1969, eh. 139, sec. 77.) Subsequently, on motion of defendants, except the County Clerk who answered, plaintiffs second amended complaint and an amendment thereto were dismissed. Plaintiff appeals from both orders dismissing his complaints.

On appeal, plaintiff contends: (1) that town meetings are unconstitutional because they are “no longer a practical means of governing densely populated townships,” (2) that the town meeting form of government violates the “one man-one vote” rule, (3) that section 77 of the Township Organization Act relating to voting viva voce or by standing to be counted violates the provision of the Ilinois Constitution of 1870 regarding the use of the secret ballot, and (4) that he stated a cause of action in his second amended complaint based upon Thompson v. Conti (1968), 39 Ill. 2d 160, 233 N.E.2d 351.

The second amended complaint (hereinafter “the complaint”) alleges that the Town of Proviso is an urban township with a large population located in western Cook County and has numerous municipalities within its boundaries which provide services to the inhabitants. On April 14, 1970, the annual town meeting was held at the field house of Proviso East High School for the purpose of examining the budget, appropriations, and tax levies for (1) the road and bridge fund, (2) the town fund, (3) tihe general assistance fund, and (4) the mental health fund for the fiscal year beginning March 31, 1970. The township electors voted down the budget, appropriations, and levies for all such funds except the mental health fund. Upon realizing that no funds would be available to pay their salaries, defendants had a special town meeting called for the purpose of re-examining the budget, appropriations, and levies for the funds which had been voted down. This special meeting was held at 8:00 P.M. on June 12, 1970, at the Proviso West High School gymnasium and resulted in passage of the budgets, appropriations, and levies for the three funds which had previously been disapproved. Although the budgets for each fund were more specific, a lump sum was appropriated for each fund.

The complaint alleged that defendants: (1) convinced various municipal leaders to announce their support for approval of the disputed budgets and to require their employees to attend the special town meeting, (2) had their mental health commissioners send a letter to the parents of mentally retarded children urging them to support approval of the disputed funds, (3) set up tables outside the meeting room and prepared voter affidavit forms to be filled out by electors prior to entry to the meeting room, (4) equipped the public address system with a cut-off switch to maintain order, (5) had police officers attend the meeting, (6) appointed election judges, eleven days in advance of the meeting, to count the votes of electors who voted for and against the proposals raised during the meeting, and (7) determined to select a moderator favorable to their views. The voter affidavits required prospective participants in the town meeting to state their names and addresses, to state whether they were American citizens over the age of twenty-one who had resided in Illinois for one year, in the county for ninety days, and in the district for thirty days, and also to state whether they were registered voters. Upon completing the form the electors were given an American flag lapel pin to indicate their qualification for voting. The complaint does not allege that any qualified electors were denied entry to the meeting room. In the meeting room, voting was done by the electors standing to be counted by election judges who used no voter binder or poll sheet. According to the complaint, 462 more people voted on the adoption of the budgets than had signed voter affidavits. Furthermore, the complaint alleged that a moderator selected by defendants conducted the meeting with bias and used the cut-off switch and the police occasionally to keep order. The complaint further alleged that only about 2% of the electors of the township attended the meeting and that no facilities within the township could accommodate all the electors of the township.

Each count focused on different aspects of the above stated facts. Count I alleged that defendants’ actions were taken pursuant to a conspiracy to violate the constitutional rights of the other electors. Count II, which was not argued on appeal, related to the constitutionality of lump sum appropriations. Count III challenged the constitutionality of township government based upon the lack of a sufficiently large meeting room within the township, the lack of an accurate method of tallying votes, and the inability to determine who were qualified electors. Each count sought to enjoin defendants’ use of the proceeds received from the sale of tax anticipation warrants and sought declaratory relief.

OPINION.

Plaintiff first contends that town meetings are unconstitutional because they are “no longer a practical means of governing densely populated townships.” The town meeting form of government provides for direct participation by electors in local government. It has a long tradition of use in the United States. Provision for its use in Illinois is made both in the Constitution of 1870 (article 10, section 5) and in the Constitution of 1970 (article 7, section 5). Both sections permit the legislature to provide methods for the discontinuance of township government which the legislature has done. (Ill. Rev. Stat. 1989, ch. 139, secs. 20-24.) Prior to recent revisions and subsequent to the occurrences in this case, the taxing authority of the township was vested in the township electors assembled at an annual town meeting. (Ill. Rev. Stat. 1969, ch. 139, sec. 39.03.) Now, that authority is vested in the Board of Town Auditors. Ill. Rev. Stat. 1971, ch. 139, sec. 126.3.

According to the statute, annual town meetings are to be held on the second Tuesday of April of each year (Ill. Rev. Stat. 1969, ch. 139, sec. 50) at 2:00 P.M. unless otherwise provided. (Ill. Rev. Stat. 1969, ch. 139, sec. 73.) Special town meetings may also be held (Ill. Rev. Stat. 1969, ch. 139, sec. 56), although the subjects of the meeting are limited to those listed in the notice of the meeting. (Ill. Rev. Stat. 1969, ch. 139, sec. 56.) In most other particulars special meetings are similar to annual meetings. (See Ill. Rev. Stat. 1969, ch. 139, sec. 59.12.) Town meetings must be held at “some convenient place in the town” fixed by the Board of Town Auditors. Ill. Rev. Stat. 1969, ch. 139, sec. 53.

Town meetings are called to order by the town clerk or a chairman selected by the electors (Ill. Rev. Stat. 1969, ch. 139, sec. 73) who subsequently acts as clerk of the meeting. (Ill. Rev. Stat. 1969, ch. 139, sec. 74.) The statute specifically provides that:

“The chairman shall, if there are electors desiring admittance to the meeting who cannot be admitted because of the size of the meeting hall, recess the .meeting forthwith to a time as soon as practicable and to a place sufficiently large to accommodate at least the number of electors present at that time within the meeting hall and those outside of the meeting hall desiring to be admitted.” Ill. Rev. Stat. 1969, ch. 139, sec. 73.

The first matter of business to be considered at the town meeting is the selection of a moderator.

The conduct of town meetings is the responsibility of a moderator selected by the electors. He is required to swear to perform the duties of his office “faithfully and impartially.” The statute further provides that:

“The moderator * * * shall preside [at town meetings], make announcement of the business before the meeting, preserve order, and decide all questions of order. He shall have the same power and be subject to the same penalties, in connection with his conduct as such moderator, as judges of election under the provisions of the general election laws of this state.” Ill. Rev. Stat. 1969, ch. 139, sec. 73.

In case of disorder, the moderator may have the pohce eject disorderly persons. (Ill. Rev. Stat. 1969, ch. 139, sec. 80.) The moderator also announces when the business of the meeting is concluded, but his decision is subject to review by the electors who may under certain circumstances reconsider matters previously disposed of. Ill. Rev. Stat. 1969, ch. 139, sec. 79.

In order to participate in a town meeting a person must “be a qualified elector of such town.” (Ill. Rev. Stat. 1969, ch. 139, sec. 81.) No cases yet construe this section. Furthermore, according to the statute:

“AH questions upon motions made at town meetings shaH be determined by a majority of the electors present and voting, and the moderator shaH ascertain and declare the result of the vote upon each question. When the result of any vote shall, upon such declaration, be questioned by one or more of the electors present, the moderator shall make the vote certain by causing the voters to rise and be counted, or by a division of the voters." Ill. Rev. Stat. 1969, ch. 139, sec. 77.

Section 79 of the statute mentions the use of a poH fist. Although township government may lack efficiency, we do not believe it is unconstitutional because plaintiff believes it to be impractical.

Plaintiff next contends that the town meeting form of government violates the “one-man-one-vote” rule. Although plaintiff concedes that the instant case does not involve questions of the inequafity in population of voting units, he asserts that holding the township form of government unconstitutional is but “a logical extension” of the principles of law expressed in the “one-man-one-vote line of U.S. Supreme Court cases beginning with Baker v. Carr (1962), 369 U.S. 186, and including Kramer v. Union Free School District (1969), 395 U.S. 621, which are based upon the equal protection clause in the federal Constitution. Plaintiff alleges three particular grounds for his challenge of the statute regarding township government: (1) the lack of a sufficiently large meeting room, (2) the lack of an accurate method of taUying votes, and (3) the inabfiity to determine who are qualified electors.

Plaintiffs first ground for challenging the statute relates to the alleged lack of a sufficiently large meeting room. It is clear that section 73 of the statute, previously quoted, makes provision for what must be done if the number of electors attending the meeting exceeds the location’s capacity. Furthermore, nothing in the statute precludes holding a town meeting out of doors in a public park for example. Particularly when the complaint is based on hypothetical grounds since it fails to allege that any qualified elector was excluded from the meeting, we do not believe the lack of a sufficiently large building within the township to house all resident electors if they were to attend makes the statutes unconstitutional.

Plaintiffs second ground for challenging the statute relates to the alleged lack of an accurate method of tallying votes. Section 77 of the statute, previously quoted, places on the moderator the responsibility for tallying votes at town meetings. Regardless of the number of electors present at the meeting, as long as the moderator counts the votes “faithfully and impartially” as he is required to do by statute (Ill. Rev. Stat. 1969, ch. 139, sec. 73.), we do not believe the statute violates the Constitution. Furthermore, if adequate safeguards are provided, we see no reason why the moderator may not delegate the task of counting votes to assistants so as to expedite the proceedings.

Plaintiffs third ground for challenging the statute relates to the inability to determine who are qualified electors. Plaintiff points out that the statute fails to provide a method for insuring that only qualified electors may participate in a town meeting and fails to specifically authorize any town officials to determine such a method. Plaintiff argues that since the Open Meeting Law (Ill. Rev. Stat. 1969, ch. 102, secs. 41 — 44), applies to town meetings, unauthorized persons may be permitted to attend the town meeting and might be permitted to cast improper votes. Although voting irregularity is a serious matter, the omission of specific provisions for preventing such irregularities in the statute regarding townships does not render that statute unconstitutional. Since section 81 of the statute does provide that only qualified electors may participate in a town meeting, we believe that the Board of Town Auditors, as a ministerial function, may legitimately establish, prior to the meeting, a method for insuring that only qualified persons participate in the town meeting if it is executed in a manner consistent with the guarantee of free and equal elections. Furthermore, while we believe plaintiff is correct in stating that at the time of the instant special meeting an elector need not have been a registered voter, the complaint does not allege that any qualified electors were turned away on this account. Now, the qualifications of electors must be considered in the light of Dunn v. Blumstein (1972), 405 U.S. 330, and other developments in the area. The case plaintiff cites regarding this point, People ex rel. Jordan Co. v. Forest View (1961), 21 Ill.2d 384, 172 N.E.2d 780, does not relate to township government, is certainly not consistent with the Dunn case, and even if it were applicable would not render the statute unconstitutional. Also, as long as all qualified electors have an equal opportunity to attend the town meeting and to vote, we do not believe the amount of time which might be required for balloting is constitutionally significant.

On the basis of these arguments, we cannot hold that the statute regarding township government dilutes the vote of any bona fide elector who wishes to exercise his franchise. A town meeting resembles a legislative body rather than an election. (See In re Contested Election (1970), 47 Ill.2d 81, 264 N.E.2d 129, regarding the inapplicability of the “one-man-one-vote” rule to decision-making elections.) The unique nature of the town meeting must also be considered. Therefore, we need not extend the “one-man-one-vote” rule in this case.

Plaintiff also contends that section 77 of the Township Organization Act, quoted previously, violates the provision of the Illinois Constitution of 1870 requiring voting to be by ballot. The statute regarding townships does require voting to be done viva voce and, in case of challenges regarding the result, to be done by having the electors divide or by having them stand to be counted. Assuming that the ballot referred to in the Constitution of 1870 only means a secret ballot, the uniqiie nature of the town meeting, its long tradition of use even preceding the Constitution of 1870, and its mention in that document itself, precludes us from holding the town meeting unconstitutional. Voting viva voce or standing to be counted is not necessarily inappropriate in all situations.

Plaintiff lastly contends that he established a cause of action against defendants for conspiracy to violate the constitutional rights of various electors based upon Thompson v. Conti (1968), 39 Ill.2d 160, 233 N.E. 2d 351. The facts in Thompson were considerably more severe than those alleged by plaintiff in the instant case. Here, no bona fide electors were alleged to have been excluded from the meeting hall or specifically prevented from voting. Here plaintiff and others merely disagree with the result and conduct of the meeting. However, the allegations in the complaint regarding rather large discrepancies in the counting of the votes and regarding alleged attempts to stifle free discussion do concern us greatly and might ordinarily justify requiring defendants to answer. Such an answer, of course, might reflect the fact that the various actions were taken pursuant to legitimate statutory ahthority of maintaining an orderly meeting. Nonetheless, in the instant case plaintiff failed to join the moderator as a defendant in the suit. The moderator is the person charged with faithfully and impartially conducting the town meeting. Since the moderator’s active participation in any conspiracy would be required, the moderator’s presence in the action is essential. Furthermore, statutory revisions have vested the subject matter of the instant special meeting in the Board of Town Auditors rather than the town electors which renders the whole matter somewhat moot.

While it is clear that plaintiff wants the courts to do away with the township form of government, he overlooks the fact that the law provides a method for achieving that end. The former Constitution of 1870 and the statute each provided such a method and the present Constitution of 1970 (article 7, section 5) specifies that resident electors of any particular township may vote to abolish that form of government within their locality.

For the above reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

DRUCKER, P. J., and ENGLISH, J., concur. .


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Peter W. Blanks, Defendant-Appellant.
    (No. 56989;
    First District (5th Division) —
    July 27, 1973.
    James J. Doherty, Public Defender, of Chicago, (Ronald P. Katz, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Patricia C. Bobb, and Ronald Lake, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    Marshall Bennett et al., Plaintiffs-Appellants, v. H. K. Porter Company, Inc., Defendant-Appellee.
    (No. 56996;
    First District (5th Division) —
    July 27, 1973.

      Rehearing denied August 27,1973.

      Donald L. Johnson, of Curtis, Marks & Katz, of Chicago, for appellants.
    Sydney G. Craig, of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

We allowed plaintiffs’ petition for leave to appeal from an order vacating a $14,942.19 jury verdict in their favor and ordering a new trial. At the same time, the court denied defendant’s motion for judgment in its favor notwithstanding the verdict, and defendant seeks such a judgment from this court without remand.

The primary issue is whether plaintiffs, real estate brokers, had been employed by defendant to find a suitable sublessee for defendant and, if so, then secondarily, whether plaintiffs may recover damages equal to the commission they would have received from a sublessee proposed by plaintiffs, had defendant not refused to accept the tendered sublease.

In October, 1966, defendant, with approximately 15 years remaining on its lease, attempted to vacate its leased property at 2567 Greenleaf Avenue, Elk Grove, Illinois, by contacting various real estate brokers who were to find a subtenant for the property. There was no request by defendant that plaintiffs act as broker for defendant, nor did plaintiffs request such relationship from defendant. Thus, though not specifically solicited by defendant, plaintiffs learned of defendant’s intent to vacate. On October 25,1966, plaintiff Bennett visited and inspected the premises, and received from a Mr. Fleming, defendant’s employee, measurements and conditions of the proposed sublease. Bennett asked if he could show the property for possible subleasing, and Fleming answered that he could. The next day, October 26, 1966, plaintiff Kahnweiler called Fleming to arrange a showing of the property to Robert Meythaler and other personnel of Playskool Manufacturing Company on the following day. Because Fleming was not at the building at the time of the visit, a few days later he gave Kahnweiler more information about the space and informed him that he was only authorized to show the property and give out information about it. Kahnweiler was referred to Vincent Hauck at defendant’s Pittsburgh headquarters. On November 3, 1966, following their phone call, Kahnweiler sent a telegram to Hauck advising him of the interest of Playskool in defendant’s space. On November 8, 1966, after several phone conversations between Kahnweiler and Hauck, a letter of intent was sent by Meythaler of Playskool to plaintiff and then to defendant setting forth the terms of a proposed sublease, specifically stating that Playskool and not defendant would pay plaintiffs’ commission. On November 11, 1966, Kahnweiler again spoke with Hauck who had received the letter and turned it over to his attorneys for processing. There followed for the next six days an exchange of phone calls between Hauck and. Kahnweiler which changed or clarified minor terms of the proposed agreement. On November 18, 1966, plaintiffs received a telegram from defendant rejecting the offer of Playskool as a subtenant. Defendant claimed an essential condition of its proposal had not been met, e.g., the release of defendant from the conditions of the lease. Other brokers, as well as plaintiff, testified that defendant had never made its release from the lease a condition of acceptance. The jury returned a verdict in favor of plaintiffs and .assessed damages in the amount of $14,942.19. The trial judge set aside the verdict and ordered a new trial. From that order plaintiffs appeal.

OPINION. .

Plaintiffs contend that the trial court erred in entering the order appealed from because the jury had properly determined that an implied contract existed between plaintiffs and defendant which entitled plaintiffs to damages when defendant refused to. accept a tendered tenant ready, willing, and able to take the premises on defendant’s terms. Plaintiffs assert that the facts imply an agreement with defendant to enter into an agreement with a suitable third party who, when the transaction was completed, would pay plaintiffs’ commission. This principle would not require that. defendant had agreed to pay plaintiffs a commission, but simply that it had employed them as brokers to find a subtenant on defendant’s terms. However, not only do the facts fail to support this claim, but it is undisputed that plaintiffs, having worked with Playskool in the past, initiated contact with defendant knowing of Playskool’s interest in that type of space. The day after Bennett talked with Fleming, Kahnweiler contacted Meythaler who wanted to see the space the next day. Furthermore, from the time initial contact was made until the time defendant rejected plaintiffs’ offer, nothing in the record discloses that plaintiffs were representing defendant. Nor is there anything to indicate that defendánt ever engaged plaintiffs to do any work on their behalf. In fact, plaintiffs worked closely with Playskool and assisted them in their negotiations with defendant by working out details of the proposed agreement with Fleming in Chicago and Hauck in Pittsburgh, and even assisted in the draft of Playskool’s letter of intent, providing their own cover letter requesting affirmative action by defendant. At no time was there any suggestion that plaintiffs were either representing both parties to the transaction or had become defendant’s broker. (See Whiston v. David Mayer Bldg. Corp., 337 Ill.App. 67, 84 N.E.2d 858.) Plaintiffs obviously had an interest in the negotiations and were willing to do what was necessary to insure that the sublease was signed. However, in the absence of employment as a broker, the. tendering of a ready, willing, and able subtenant was merely an offer which defendant was free to reject with or without cause; When, initially, defendant was contacting brokers to find a subtenant, plaintiffs were not called. Instead, plaintiffs initiated discussions with defendant, knowing that Playskool was interested in moving to new space. Fleming told plaintiffs that his authority was limited to showing the space and stating defendant’s terms, and that he had no final authority to enter into a sublease on behalf of defendant. He also told a Mr. O’Leary, one of plaintiffs’ employees, that defendant would not pay any brokerage commission, a practice which O’Leary thought unusual in the Chicago area. When Playskool decided to take the space, its chairman, Meythaler, contacted plaintiffs, who then talked to Hauck, defendant’s representative in Pittsburgh. The numerous phone conversations between Hauck and Kahnweiler resulted in a letter of intent sent to plaintiffs from Playskool which was accompanied by a covering letter from plaintiffs to defendant urging acceptance of the offer. From those letters' it seems clear that plaintiffs knew they were making an offer only and were doing so on behalf of the third party, Playskool. (See Turek v. Opava, 192 Ill.App. 270, and Day v. Hale, 50 Ill.App. 115.) The letter of intent drafted by Kahnweiler, signed by Meythaler on behalf of Playskool, and dated November 8, 1966, contained the following language:

“This is your authority to offer on our behalf to sublease the premises known as 2567 Greenleaf Avenue, Elk Grove Village, Illinois * * Our intention to lease the premises is subject to a review of the present lease documents between H. K. Porter & Company and the owner of the building and an approval by legal counsel for both ourselves and H. K. Porter and Company of any lease instrument or sublease instrument between ourselves and H. K. Porter & Company.
e # e
This letter of intent shall be open and valid until 5:00 P.M., Central Standard Time, on Thursday, November 17, 1966; and if not accepted in writing by that time by H. K. Porter and Company, it shall become null and void and our $7,000.00 check shall be promptly returned."

Thus it is apparent that plaintiffs were acting on behalf of Playskool and that Playskool recognized that defendant had the power to reject the offer outright, which they did, or simply let it lapse by waiting until after the deadline for acceptance.

In the absence of an expressed written agreement between the parties, an implied contract may be created if the broker acts with the consent of his principal. (Korman v. Wanen Catalpa Apartments, Inc., 20 Ill.App.2d 598, 156 N.E.2d 621.) Whether the broker has his principal’s consent must be determined from the facts and circumstances of each case. It has been held, however, that when the principal merely allows the broker to take part in negotiations concerning the lease, he has not thereby created an implied brokerage agreement. (Whiston v. David Mayer Bldg. Corp., 337 Ill.App. 67, 84 N.E.2d 858.) A stronger denial of the existence of a brokerage agreement is presented when the broker never represents the principal, the principal never accepts the broker as his agent, and the principal refuses to pay the broker’s commission even though the broker has played a significant part in the transaction. See Lynch v. Nachusa Hotel Corp., 93 Ill.App.2d 250, 235 N.E.2d 260 and Chapman v. Illinois Midwest Joint Stock Land Bank of Edwardsville, 302 Ill.App. 282, 23 N.E.2d 744.

From the foregoing we conclude that the manifest weight of the evidence demonstrates the nonexistence of either an express or implied brokerage agreement between plaintiffs and defendant. Furthermore, since, according to the letter dated November 8, 1966, Playskool’s offer could be terminated either by lapse of time or defendant’s rejection, the evidence clearly established that defendant did not act improperly when it rejected the offer of plaintiffs’ tendered tenant and, as a consequence, cannot be held liable in damages for plaintiffs’ lost commission.

Plaintiffs also argue that it was error for the trial judge to order a new trial when his decision did not relate to questions of fact but only to confusion on a point of law. At the hearing on defendant’s motion for a new trial, the judge stated: “I have cases going all ways in this, and it’s got me. It is one case that I can’t — I am having a hard time making up my mind. # * I am going to let the Appellate Court decide.” Since a new trial would not clear up any confusion on the questions of law involved, it is an inappropriate form of relief, and granting the motion was an abuse of discretion under those circumstances. (See Randall v. Randall, 281 Ill.App. 169.) It is interesting to note in this regard that neither party is seeking a new trial.

The confusion plaintiffs refer to is manifest in the giving of an instruction which may well have misled the jury to the point of influencing their verdict. This instruction which had been tendered by plaintiffs stated:

"You are instructed that it is not necessary for the plaintiffs to recover in this case that there be an agreement between the plaintiffs and the defendant that the defendant would pay the plaintiffs’ commission. The plaintiffs are entitled to recover if you find from the evidence that they produced a tenant ready, willing and able to take the premises in question on the terms listed by the defendant and that the defendant thereafter failed to complete the transaction.”

Even though another instruction states that plaintiffs were required to prove the existence of an employment agreement, this unqualified statement as to when plaintiffs might recover was importantly erroneous in this case and would justify the granting of a new trial on motion of defendant, but no such request was made nor is it now being asked for.

In conclusion, therefore, the order setting aside the verdict is affirmed, the granting of a new trial is reversed, and (although there was no cross appeal), the cause is remanded with directions to allow defendant’s motion for judgment in its favor notwithstanding the verdict. Supreme Court Rule 306(a)(2); Ill. Rev. Stat. 1971, eh. 110A, par. 306(a)(2).

Affirmed in part, reversed in part and remanded with directions.

DRUCKER, P. J., and LORENZ, J., concur.


text:
    Insurance Company of North America, as Subrogee of The Boeing Company et al., Plaintiffs-Appellants, v. Hewitt-Robbins, Inc. et al., Defendants-Appellees.
    (No. 57704;
    First District (5th Division) —
    July 27, 1973.
    Daniel J. Leahy, of Chicago, for appellants.
    Thomas D. Allen and David L. Schiavone, both of Chicago, for appellees.
   Mr. JUSTICE LORENZ

dehvered the opinion of the court:

On July 2, 1967, a tractor trailer transporting equipment and aircraft parts owned by the Boeing Company was struck by an automobile traveling in the wrong direction on the Indiana Turnpike. The automobile was owned by Avis Rent-A-Car System, Inc. and driven by Euties Wilson, an employee of Avis. This action was brought by Boeing and its insurer, Insurance Company of North America, as subrogee to recover damages from Avis and three other named defendants. The trial court granted summary judgment in favor of Avis and found that no just reason for delay in an appeal existed.

The pleadings filed by both parties are in agreement that on July 2, 1987, during a personal trip, Wilson caused the accident in question by negligently driving in the wrong direction on the Indiana Turnpike. Plaintiffs allege in paragraph 13 of Count VIII of their amended complaint that Avis employed Wilson when it knew or should have known that his driving license was revoked, that he had a poor driving record, and that he was a person of intemperate habits and in poor health.

Avis alleged in its answer that Wilson’s position with Avis was that of a car hiker and as such he did not have the authority to drive Avis’ vehicles outside of the O’Hare airport complex where he worked, except with the express written permission of the company’s district manager. On July 1, 1967, Wilson, without procuring formal permission, took a car from Avis for his own personal use.

In the petition for rehearing following the granting of the summary judgment, plaintiffs alleged that Fred Regan, Avis’ foreman, knew that Wilson lacked a valid driver’s license at the time of hiring; that Wilson often drank acohlolic beverages while on the job; that Wilson and other employees often took cars for their own personal use; and that Avis carelessly left authorization slips around that could be used by employees to show authority to take an automobile.

The court denied plaintiffs’ motion for a rehearing and they took this appeal presenting the sole issue of whether defendant Avis was not negligent, as a matter of law, regarding the allegations brought against it by plaintiffs in paragraph 13 in Count VIII of the amended complaint.

OPINION

Both parties agree that Wilson was not an independent contractor but that a master-servant relationship between Wilson and Avis existed. The doctrine of respondeat superior is applicable only when the employee is acting within the scope of his employment. (Brill v. Davajon (1964), 51 Ill.App.2d 445, 201 N.E.2d 253; Palmer v. Miller (1942), 380 Ill. 256, 43 N.E.2d 973; Haynes v. Holman (1943), 319 Ill.App. 398, 49 N.E.2d 324; Becker v. Brummel (1943), 319 Ill.App. 499, 48 N.E.2d 419.) Since plaintiffs concede that Wilson was acting outside the scope of his employment, Avis is not liable under the normal rules of agency. Accordingly, plaintiffs rely on two negligence theories: that since Avis either knew or should have known that Wilson was an unsafe and unqualified driver, (1) Avis was negligent in hiring him, and (2) Avis was negligent in having procedures whereby Wilson gained easy access to the automobiles.

Regarding plaintiffs’ first contention, the so-called negligent hiring theory, other jurisdictions are in disagreement as to whether to recognize the theory (53 Am.Jur. Master-Servant, §422 (1972)):

“The cases are in disagreement as to whether the negligence of an employer in selecting or retaining incompetent or unfit employees is an independent basis for his liability to a third person.”

Plaintiffs cite no Illinois case nor could we find one which applies the negligent hiring theory to master-servant relationships. Plaintiffs instead rely on Tansey v. Robinson (1960), 24 Ill.App.2d 227, 164 N.E.2d 272, and Gomien v. Wearever Aluminum, Inc. (1971), 50 Ill.2d 19, 276 N.E. 2d 336, 339, both involving independent contractor relationships. Both cases apply the rule announced in Restatement of the Law on Torts, Second, §411 at 376 (1934):

“Negligence in Selecting of Contractor.
An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor * * *
(b) to perform any duty which the employer owes to third persons.”

In Gomien, the court found at 50 Ill.2d 19, 24, 276 N.E.2d 336, 339, that “the operation of the automobile by Twing was not an act collateral to the performance of the work for which he was engaged.” (Emphasis added.) Likewise in Tansey, since plaintiff was injured by a car driven by the contractor who at the time of the accident was delivering groceries purchased by customers of the defendant, the act causing the accident was not “collateral” to the performance of the contractor’s work. Therefore, neither Gomien nor Tansey would justify this court’s extending the negligent hiring theory to an employe engaged in a personal vacation trip at the time , of the accident, clearly an act “collateral” to his employment. We hold that the trial court properly found Avis not liable, as a matter of law, for plaintiffs’ injuries based on the negligent hiring theory.

Plaintiffs’ next contention is that Avis was negligent in having procedures whereby Wilson gained easy access to the automobiles. The portions of paragraph 13 in Count VIII of the amended complaint relevant to this contention are:

“f) failed to adequately guard and police its automobiles so as to prevent their unauthorized use;
g) failed to check and control its automobiles so as to determine that the automobile later used by Wilson at said time and place was missing;
h) knowingly permitted its employees to operate its automobiles for personal business;
i) knowingly permitted Wilson to operate Avis’ automobiles on company business when it knew or should have known that he was unreliable and careless.”

Plaintiffs do not cite nor could we find a single case to support this theory of liability. We can see no reason to hold Avis liable for the negligent act of Wilson committed outside the scope of employment.

The judgment of the circuit court is affirmed.

Affirmed.

DRUCKER, P. J., and SULLIVAN, J., concur.


author: Mr. PRESIDING JUSTICE BURKE

text:
    The People of the State of Illinois (City of Chicago), Plaintiff-Appellee, v. Felipe Claudio, Defendant-Appellant.
    (Nos. 57283, 57284 cons.;
    First District (1st Division) —
    July 9, 1973.

      James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Nicholas Motherway, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

The defendant, Felipe Claudio, was found guilty at a bench trial of resisting arrest in violation of section 33 of chapter 11 of the Municipal Code of the City of Chicago and fined the sum of $45. He also was found guilty of the offense of battery. (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 3.) The defendant’s application for probation was allowed and he was released for one year to the chief probation officer on condition that the defendant serve the first thirty days in the House of Correction.

There were two records filed in the appellate court. Appellate Court No. 57283 pertains to the appeal from a judgment finding the defendant guilty of resisting arrest in violation of section 33 of chapter 11 of the Municipal Code of the City of Chicago. Appellate Court No. 57284 pertains to the appeal by the defendant from a judgment finding him guilty of the offense of battery in violation of section 12 — 3 of the Criminal Code of Illinois.

The evidence discloses that on December 31, 1971, the defendant was causing a disturbance in front of 1318 North Spaulding Avenue, Chicago,; Illinois. Police Officer Joseph Terracina attempted to arrest the defendant? The defendant resisted and they started struggling and both féll to-the ground. Police Officers Fred Mascarella and Carl Veller cáme to" the assistance of Terracina. In attempting to place the defendant in their squad car, the defendant kicked both Mascarella and Veller.

The defendant contends (1) that because the State, rather than the City of Chicago, prosecuted the complaint for resisting arrest in violation of section 33 of chapter 11 of the Municipal Code of the City of Chicago, the defendant’s conviction is a nullity; and (2) that the State’s failure to prove the material allegation of bodily harm contained in the battery complaint is fatal to the conviction of the defendant.

The defendant argues that the Assistant State’s Attorney, rather than the Corporation Counsel, conducted the hearing for the City of Chicago in Appellate Court No. 57283 and, therefore, the conviction for resisting arrest is a nullity. The State argues that it was not error for the Assistant State’s Attorney to prosecute the City violation and, further, the appeal on the ordinance violation should be dismissed because the defendant failed to serve a notice of appeal on the City of Chicago. Similar arguments were presented in the case of People v. Wright, 75 Ill.App.2d 290, 221 N.E.2d 159, and the court held that “the Assistant State’s Attorney was not acting for the State’s Attorney when he undertook to prosecute the case for the City”; that “notice to the State’s Attorney therefore cannot be considered notice to the City”; and that “failure of defendants to designate in their Notice of Appeal the City of Chicago as appellee and the failure to give notice to the city was therefore fatal to their appeals on that point.”

Rule 303(d) of the Illinois Supreme Court (Ill. Rev. Stat. 1971, ch. 110A, par. 303) provides that the party filing a notice of appeal shall serve a copy “upon every other party and upon any other person or officer entitled by law to notice of the appeal.” The City of Chicago, the plaintiff in Appellate Court No. 57283, comes within the provisions of Rule 303(d) and defendant’s failure to serve it with a copy of the notice of appeal requires that the appeal in Appellate Court No. 57283 be and it is dismissed.

The defendant relies upon the case of City of O’Fallon v. Reynolds, 2 Ill.App.3d 712, 276 N.E.2d 772. However, the Reynolds case held (2 Ill.App.3d, 715-16) that a municipality cannot be a proper party plaintiff in the prosecution of a violation of a State statute. That is not the situation in the case at bar. Here the City of Chicago charged the defendant with a violation of a municipal ordinance and the complaint was filed in the name of the City of Chicago.

The defendant also argues that the State faffed to prove that police officer Mascarella suffered bodily harm as a result of the kicking by the defendant and, therefore, the battery conviction should be reversed. Officer Fred Mascarella testified that when he and his partner, officer Veller, got to 1318 North Spaulding Avenue, Chicago, police officer Joseph Terracina and the defendant were fighting on the ground; that Mascarella and Veller got out of the car and started to put the defendant under arrest; that they handcuffed him, but he did not want to get into the car; that he was kicking and fighting; and that the defendant kicked officer Carl Veller. Officer Mascarella also testified as follows:

“Q. Did he fight with you or kick you also, officer?
A. I was also kicked.
Q. Did you sustain any injuries being kicked, officer?
A. No, sir, I did not.
Q. You saw also Officer Veller being kicked, is that right?
A. Yes, sir. He was kicking him in both legs all the way to the ?> car.

Officer Veller testified that he also was kicked several times in both legs by the defendant but that he did not sustain any injuries.

The record clearly shows that the defendant committed the offense of battery against the police officers and that he did kick officers Mascarella and Veller. It seems self-evident that the kicking of the police officers is in and of itself the causing of bodily harm and, therefore, the charge of battery against the defendant was proved beyond a reasonable doubt.

In People v. Snarich, 3 Ill.App.3d 290, 278 N.E.2d 521, the court held that in a bench trial it is the function of the trial court to determine the credibility of the witnesses and the weight to be given their testimony, and the court of review will not substitute its judgment in this regard unless the evidence is so improbable or unreasonable as to leave a reasonable doubt of the defendant’s guilt.

People v. Wright, 75 Ill.App.2d 290, 221 N.E.2d 159, relied upon by the defendant, is factually inapposite. There the evidence showed that the defendant, Herbert Wright, merely shoved the police officer and that there was no evidence proving that Wright kicked or otherwise caused bodily harm to the police officer. It was Irene Wright who started hitting and kicking the police officer. The court there held that the evidence on behalf of tire State showed that she started to hit and kick the officers when they were in the act of placing her husband under arrest; that her continued resistance necessitated carrying her out of the apartment and down the stairs and that this evidence was sufficient to support her conviction on the charge of resisting a police officer.

In People v. Garrett, 11 Ill.App.3d 142, 145, 296 N.E.2d 44, 46, the defendant challenged the sufficiency of the evidence as to the bodily harm inflicted. The court sustained the conviction, saying:

“As to each of these contentions we are inclined to hold that there are questions of fact to be resolved by the trier of fact. It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of the disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses. (People v. Mills, 40 Ill.2d 4; People v. Orlando, 380 Ill. 107, cert. den. 317 U.S. 694.) We will not reverse a criminal conviction where the evidence is not so improbable as to raise a reasonable doubt of guilt. (People v. Ashley, 18 Ill.2d 272, cert.den. 363 U.S. 815). We do not find the evidence in this case to be so improbable as to raise a doubt as to the defendant’s guilt.”

In the case at bar there is sufficient evidence to sustain the judgment of the trial court in Appellate Court No. 57284.

As to defendant’s appeal in Appellate Court No. 57284 People v. Claudio, we are of the opinion that provisions of the Unified Code of Corrections (Ill. Rev. Stat. (1972 Supp.), ch. 38, par. 1001 — 1—1 et seq.) are applicable.

The new Unified Code of Corrections, par. 1005 — 6—2(a) (Ill. Rev. Stat. (1972 Supp.), ch. 38, par. 1005 — 6—2(a)) provides in relevant part:

“(a) When an offender is sentenced to probation or conditional discharge, the court shall impose a period under paragraph (b) of this Section, and shall specify the conditions under Section 5 — 6—3.”

Paragraph 1005 — 6—3 (Ill. Rev. Stat. (1972 Supp.), ch. 38, par. 1005— 6 — 3) provides that as a condition of probation or conditional discharge the court may require a person to “serve a term of periodic imprisonment under Article 7 for a period not to exceed 2 years or the maximum term of imprisonment provided for the offense, whichever is less.” Ill. Rev. Stat. (1972 Supp.), ch. 38, par. 1005 — 6—3(b)(1).

The Unified Code of Corrections specifies that the defendant be sentenced pursuant to article 7 of the Code in par. 1005 — 6—3(d) wherein it states:

“(d) The court shall not require as a condition of the sentence of probation or conditional discharge that the offender be committed to a period of imprisonment except under Article 7.”

Article 7 of the Unified Code of Corrections (Ill. Rev. Stat. (1972 Supp.), ch. 38, par. 1005 — 7—1) provides in relevant part:

“§ 5 — 7—1. Sentence of Periodic Imprisonment.)
(a) A sentence of periodic imprisonment is a sentence of imprisonment to be served on certain days or during certain periods of days, or both, specified by the court as part of the sentence.
(b) A sentence of periodic imprisonment may be imposed to permit the defendant to:
(1) seek employment;
(2) work;
(3) conduct a business or other self-employed occupation including housekeeping;
(4) attend to family needs;
(5) attend an educational institution, including vocational education;
(6) obtain medical or psychological treatment; or
(7) for any other purpose determined by the court.
A defendant who receives a sentence of periodic imprisonment shall be incarcerated at such times as are specified in the sentence.
(c) The court may impose a sentence of periodic imprisonment for a felony or misdemeanor on a person who is 17 years of age or older. The court shall not impose a sentence of periodic imprisonment if it imposes a sentence of imprisonment upon the defendant.
(d) A sentence of periodic imprisonment may be for a term up to 2 years, or the longest sentence of imprisonment that could be imposed for the offense, whichever is less. The term of the sentence shall be calculated upon the basis of the duration of its term rather than upon the basis, of the actual days spent in confinement.
(e) When the court imposes a sentence of periodic imprisonment, it shall state:
(1) the term of such sentence;
(2) the days or parts of days which the defendant is to be confined;
(3) the conditions.”

In the present case defendant Felipe Claudio, on January 10, 1972, was convicted and sentenced to a term of one year probation with the condition that the first 30 days be served in the House of Correction.

The Unified Code of Corrections became effective on January 1, 1973. As to retroactive effect of the Unified Code of Corrections Ill. Rev. Stat. (1972 Supp.), ch. 38, par. 1008 — 2—4 provides:

“§ 8 — 2—4. Prosecutions Continued — Applicable Sentencing Provisions.)
Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. If the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.”

The Illinois Supreme Court had an opportunity to construe par. 1008— 2 — 4 in People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269. The Supreme Court stated in Harvey that where the defendant’s direct appeals from convictions were not finally adjudicated as of the effective date of the Unified Code of Corrections establishing minimum sentences, defendants could avail themselves of the statute, and upon affirmance, the cases would be remanded with directions to resentence defendant in accordance with the statute.

We are of the opinion that defendant may avail himself of the provisions of the Unified Code of Corrections because his direct appeal was not “finally adjudicated” as of the effective date of the statute. We amend the judgment in the Appellate Court No. 57284 by striking therefrom the sentence of 30 days in the House of Correction. The judgment as amended in Appellate Court No. 57284, placing defendant on probation for one year, is affirmed.

Appeal dismissed in No. 57283. Judgment amended in No. 57284 and affirmed as amended.

GOLDBERG and EGAN, JJ., concur.