author: Mr. JUSTICE LORENZ

text:
    Barbara Kobylanski, a Minor, by Walter Kobylanski, Her Parent and Next Friend, Plaintiff-Appellant, v. Chicago Board of Education et al., Defendants-Appellees.
    (No. 58992;
    First District (5th Division)
    August 23, 1974.

      Rehearing denied September 23, 1974.

    Jerome E. Cihak and Winkler & Fomelli, Ltd., both of Chicago, for appellant.
    Morrill, Koutsky, Chuhak and Upton, of Chicago (Roland C. Upton and Philip J. McGuire, of counsel), for appellee Chicago Board of Education.
    Lord, Bissell & Brook, of Chicago (Stephen A. Milwid, Richard E. Mueller, and John J. Berwanger, of counsel), for appellee James Leeos,
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals from the orders of the trial court directing a verdict in favor of defendants James Leeos and the Chicago Board of Education and denying her post-trial motion for a new trial. The action seeks to recover for personal injuries under the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 1 — 101 et seq.). On appeal plaintiff contends that the orders of the trial court were improper since a prima facie case of negligence was proven against defendants.

The parties agree that the question presented is purely one of law. Plaintiff was injured during her seventh-grade physical education class at Mark Twain Elementary School in Chicago. She suffered spinal injuries when she fell while performing an exercise on an apparatus called the “rings.” Leeos was the teacher of the class and had given instructions on the performance of the exercise prior to the accident. Defendants are covered by liability insurance policies. Plaintiff filed her amended complaint under the Local Governmental and Governmental Employees Tort Immunity Act alleging defendants’ negligent conduct. Defendants’ answers denied the allegations of negligence and set forth as an affirmative defense section 34 — 84a of the School Code of 1961 (Ill. Rev. Stat. 1971, ch. 122, par. 34 — 84a). Plaintiff’s reply denied the applicability of defendants’ affirmative defense to the facts as pleaded in the amended complaint. At trial after plaintiff had presented her case, the trial court directed a verdict in favor of defendants. A post-trial motion for a new trial was denied, the trial court finding that plaintiff had failed to sustain her burden of proving defendants’ willful and wanton conduct as required by section 34 — 84a of the School Code of 1961.

Plaintiff concedes that she did not allege or prove defendants’ willful and wanton conduct but contends that where, as here, a public entity or its employee has procured liability insurance, liability for personal injuries may be founded on ordinary negligence. Plaintiff argues that section 34 — 84a of the School Code of 1961 is not applicable to the facts in this case.

Section 34 — 84a of the School Code of 1961 provides:

“Teachers and other certificated educational employees shall' maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.”

It was the trial judge’s decision and is defendants’ position that no liability can attach to a teacher for mere negligence in supervision or maintaining discipline because of the status conferred by this section; namely, that of a parent or guardian to aU the students in the classroom. Liability of a parent for injuries to a child does not attach absent willful and wanton conduct. Mroczynski v. McGrath, 34 Ill.2d 451, 216 N.E.2d 137; Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525.

Although section 34 — 84a has never been subject to appellate review for the question under consideration here, there are several decisions that have considered identical language found in section 24 — 24 of the School Code of 1961 (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 24).

In Merrill v. Catholic Bishop, 8 Ill.App.3d 910, 290 N.E.2d 259, plaintiff, a seventh-grade student, was sent by his teacher to a room to cut lengths of wire from a coil to use in an art project. While doing so, he was strack in the left eye by the end of the wire resulting in the loss of vision in that eye. His action for negligence was dismissed for failure to state a cause of action. Tire appellate court affirmed holding that the statutory language did not limit the liability of a teacher to only disciplinary situations, but also to any activities directed by a teacher as part of the school program. Accord, Mancha v. Field Museum, 5 Ill.App.3d 699, 283 N.E.2d 899; Woodman v. Litchfield Community School District No. 12, 102 Ill.App.2d 330, 242 N.E.2d 780; Fustin v. Board of Education, 101 Ill.App.2d 113, 242 N.E.2d 308.

It cannot be disputed that plaintiff’s injuries in the instant case occurred during activities directed by a teacher as part of the school program. In view of the interpretation given to identical language in section 24 — 24, we conclude that section 34 — 84a of the School Code of 1961 is applicable to the facts as pleaded by plaintiff.

Plaintiff argues, however, that the doctrine of “parental immunity” is eroding, that the justification for the doctrine does not exist in a teacher-student relationship and that therefore we should deny its application to the case at bar. Unquestionably, Illinois law retains the doctrine of “parental immunity” for mere negligence within the scope of the parental relationship, (Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525; Mroczynski v. McGrath, 34 Ill.2d 451, 216 N.E.2d 137.) It is also clear that the legislature sought to vest tire teachers with parental status in aH matters relating to the discipline in and conduct of the schools and the school children. (Ill. Rev. Stat. 1971, ch. 122, par. 34 — 84a.) The doctrine of “parental immunity” being applicable here, it was necessary for plaintiff to plead and prove defendants’ willful and wanton conduct.

Finally, plaintiff argues that defendants’ procurement of insurance constitutes a waiver of the provisions of section 34 — 84a of the School Code of 1961. The thrust of her argument is that section 9 — 103 (b) of the Local Governmental and Governmental Employee Tort Immunity Act waives the right of a public entity to deny liability for negligent conduct.

This argument is without merit. The Tort Immunity Act provides:

“Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act.’” (Emphasis added.) Ill. Rev. Stat. 1971, ch. 85, par. 9— 103(b).

The applicable provisions found in the School Code of 1961 do not require, as does section 9 — 103 of the Tort Immunity Act, any waiver of defenses or immunity from suit. The Tort Immunity Act does not purport to impose liability on school districts where no liability otherwise exists. (Fustin v. Board of Education of Community Unit District No. 2, 101 Ill.App.2d 113, 242 N.E.2d 308.) Furthermore, the existence or nonexistence of insurance coverage is not a proper factor in determining liability. Cosmopolitan National Bank v. Heap, 128 Ill.App.2d 165, 262 N.E.2d 826.

We are compelled to conclude that plaintiff’s amended complaint alleging ordinary negligence is insufficient as a matter of law. It was therefore proper for the trial judge to direct a verdict in favor of the defendants and deny plaintiff’s motion for a new trial.

Accordingly, the judgments of the circuit court are affirmed.

Affirmed.

DRUCKER and BARRETT, JJ., concur.

      Section 24 of the School Code of 1961 is applicable to cities with populations less than 500,000; section 34 to cities with populations greater than 500,000.


source: Caselaw Access Project

author: Mr. JUSTICE BARRETT

license: Public Domain

text:
    D. Jill Lavin, Plaintiff-Appellant, v. Board of Education, High School District No. 214, Cook County, Defendant-Appellee.
    (No. 59915;
    First District (5th Division)
    August 23, 1974.
    Stuart Berks, of Chicago, for appeUant.
    Franke and Miller, of Chicago (Ralph Miller, of counsel), for appellee.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Commencing in September, 1971, and continuing throughout the duration of the 1971-1972 school year, plaintiff was employed by defendant school district to teach at John Hersey High School in Arlington Heights. Plaintiff taught full time as an English teacher and was given a second contract for the 1972-1973 school year.

On March 27, 1973, approximately 90 days prior to the expiration of her second-year term, plaintiff was informed by letter that she would not be employed for the 1973-1974 school year. The letter was signed by the secretary of the school board and indicated that defendant had approved a resolution terminating plaintiffs contract as of June 14, 1973. The specific reasons given plaintiff for the Board action were as follows:

“(a) Does not exercise mature and professional judgment in the control and management of students.
(b) Does not follow or support district policy.
(c) Students are not given proper opportunity for educational development.
(d) Early dismissal of classes.
(e) Allowing students to come and go from class during the instruction period as they please.”

This notification fully complied with the applicable statutory requirement. Ill. Rev. Stat. 1971, ch. 122, par. 24 — 11.

Subsequently, plaintiff requested a hearing or other opportunity to challenge the decision of defendant not to rehire her. The request was denied.

Plaintiff then filed her complaint in mandamus seeking to compel defendant Board of Education to rehire her for the 1973-74 school year or to compel the Board to set up reasonable- procedures for purposes of providing the plaintiff with a hearing on her dismissal and also praying for compensatory damages to the plaintiff for any salary lost as the result of her alleged unlawful dismissal.

In response, defendants filed a motion for summary judgment. The court granted defendants’ motion and dismissed the case. This appeal is taken from that order.

OPINION

The sole issue presented for review is whether due process entitled plaintiff to a pre-termination hearing on the reasons cited for her non-retention by the notification letter of March 27, 1973.

Plaintiff contends that lack of a contractual or tenure right to reemployment, taken alone, does not defeat the claim that non-renewal of plaintiff’s contract without a hearing is in violation of her rights to procedural due process.

Plaintiff admits in her pleadings that the School Code of Illinois does not endow her with any right or privilege to any hearing of any kind. Plaintiff admits further that teachers who have not entered upon contractual continued services are not entitled to hearings of the type provided by the Legislature in section 24 — 12 of the School Code. (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 12.) Plaintiff relies solely on article I, section 2 of the Constitution of the State of Illinois, 1970, which provides in part that:

“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.”

Defendants contend that plaintiff as a probationary teacher had neither a statutory nor a constitutional right to any hearing and that denial of a hearing did not, therefore, infringe upon any constitutionally protected interest of liberty or property.

Defendants rely heavily on the decision upon the question of rights of non-tenured public school teachers in the opinion of the U. S. Supreme Court issued in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701, and on later 7th Circuit U. S. Court of Appeals decisions following the Roth case.

In the Roth case, the court held that the requirements of due process apply only to deprivation of interests in liberty or property encompassed within the protection of the fourteenth amendment. The court determined that where the employing school board made no charge against a teacher which might impose on him a stigma, such as where good name, reputation, honor or integrity were designated, no interest in his liberty to secure other employment was abridged and no hearing was required. It was indicated that the purpose of such a hearing was to provide the teacher with an opportunity to "clear his name." The decision further implied that mere proof that the teacher's non-retention record might make him less attractive to other employers would not be su~cient to establish a foreclosure of opportunities tantamount to a deprivation of "liberty."

Also in terms of the fourteenth amendment, the court considered whether or not Roth had a protectible property interest in his nontenured employment as a teacher. It was held that Roth had no "property" interest in an expectation of continued employment. To establish a "property" interest, an individual must establish more than an abstract or unilateral expectation of employment. Absent a legitimate claii~a of entitlement to continued employment, the court held that Roth had not suffered any deprivation of a property interest.

In light of the k~oth decision, we hold that the right to due process is applicable only to the action of a state or governmental body which impairs a person's interest in either liberty or property. Referring to the case at bar, we find that defendant made no charges which could have damaged plaintiff's standing or associations in her community. It is noteworthy that counsel for plaintiff in oral argument admitted that but for reasons (a) and (c) aforesaid, plaintiff would have no cause for complaint of her non-retention, but only contended that reasons (a) and (c) carried with them such stigma as to violate some constitutional rights protected by procedural due process.

We disagree.

In cases following Roth, namely, Lipp v. Board of Education (7th Cir.), 470 F.2d 802; Clark v. Holmes (7th Cir.), 474 F.2d 928, cert. denied, 411 U.S. 972, 36 L.Ed.2d 695, 93 S.Ct. 2148; Shirck v. Thomas (7th Cir.), 486 F.2d 691, and especially in Miller v. School District No. 167 (7th Cir.), 495 F.2d 658, the reasons assigned for non-renewal would appear to be more stigmatizing than in this case but those cases con-. sistently followed Roth in holding that the reasons were not such as to deprive the alleged aggrieved person of a constitutional right to the protection of liberty or property.

Neither can we hold that reasons (a) and (c) might not be totally acceptable to some other board of education.

Looking at the nature of plaintiff’s interest in her employment, we find that the nature of her property interest in her continued employment was created and defined by the terms of her employment contract. By virtue of those terms, plaintiff’s interest in her employment was secured up to June 14, 1973. The terms secured no interest in re-employment for the subsequent or any other school year. Clearly, plaintiff had a substantial concern in being rehired. We hold, however, that she did not have a property interest in re-employment sufficient to require defendant to give her a hearing when it declined to renew her contract.

We hold that plaintiff’s non-retention did not foreclose opportunity for other employment nor did it place upon plaintiff any actionable stigma. We also hold that the terms of plaintiff’s employment accorded her no substantial “property” interest in re-employment which is protected by procedural due process. The decision of the trial court is therefore affirmed.

Affirmed.

SULLIVAN, P. J. and DRUCEER, J., concur.


author: Mr. JUSTICE BURMAN

text:
    Flight Kitchen, Inc., Plaintiff-Appellee, v. Chicago Seven-Up Bottling Co., Defendant-Appellant.
    (No. 57920;
    First District (4th Division)
    August 28, 1974.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Tobin, and Michael P. Connelly, of counsel), for appellant.
    B. John Mix, Jr., of Chicago, for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This appeal evolves from an action brought in the circuit court by Flight Kitchen, Incorporated, an Illinois corporation, against Chicago Seven-Up Bottling Company (hereinafter referred to as Seven-Up) to recover damages allegedly suffered by reason of an averred trespass to the property of Flight Kitchen by an attorney, Harry Levitón, when he, in enforcing a judgment rendered on behalf of Seven-Up against a third corporation, Plan for Hospital Foods, Incorporated, wrongfully directed the sheriff to levy against the property of Flight Kitchen. After a jury trial, Flight Kitchen was awarded $12,000 in damages and, in addition, $12,000 in punitive damages. The trial court entered judgment on that verdict and this appeal by Seven-Up follows.

Seven-Up contends: (1) the court erred in failing to direct a verdict in its favor; (2) the damages awarded are excessive; and (3) the cumulative effect of trial errors deprived it of a fair trial.

The basic facts are these: Plan for Hospital Foods, an Illinois corporation, owed money to Seven-Up. The delinquent account was turned over by Seven-Up to Dun & Bradstreet, Incorporated, for collection. Attorney Harry Levitón received the account from Dun & Bradstreet. He brought suit and on June 15, 1967, obtained a judgment on behalf of Seven-Up against Plan for Hospital Foods in the amount of $1499.60. On April 18, 1967, he had previously billed Seven-Up for a retainer fee of $75 and for court costs in the amount of $25. Seven-Up paid these amounts. Prior to directing a levy to enforce the judgment, Levitón requested Seven-Up to execute the necessary bond for that purpose and Seven-Up did so. He then directed the sheriff to levy on property at 9561 Franklin Avenue in Franklin Park, Illinois. This address was the registered address of both Plan for Hospital Foods and Flight Kitchen. At this location the deputy sheriff was told by one Adam Senese, the president and registered agent of both Flight Kitchen and Plan for Hospital Foods, that he was at the wrong premises and the property there was owned solely by Flight Kitchen and not Plan for Hospital Foods. The deputy sheriff reported the conversation to Levitón by telephone and was told by him that it was only a cover-up and that he should proceed with the levy and close the business. The deputy finally effected the levy' 2 weeks later and padlocked the premises. As a result various perishable foods on the premises deteriorated and had to be removed by Franklin Park Health Department officials.

In the original complaint filed on October 27, 1967, Flight Kitchen named as defendants, Seven-Up, Dun & Bradstreet, Inc., a New York corporation; Joseph I. Woods, Sheriff of Cook County; Edward Chmielweski and John Clemens, individually and as Deputy Sheriffs of Cook County. Orders were subsequently entered dismissing the sheriff and the deputy sheriffs from the suit and allowing the motion of defendant Dun & Bradstreet for a summary judgment in its favor. It was further held in the latter judgment order that as a matter of law, Harry Levitón, the attorney ordering the levy, was neither the agent nor attorney for Dun & Bradstreet. All of the aforementioned orders specifically provided that they were immediately appealable, but no appeals were taken from them.

It is initially contended by Seven-Up that the court erred in failing to grant a directed verdict in its favor, citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504. It is first urged in support of this proposition that Seven-Up was not responsible for the actions of Levitón, the attorney who ordered the levy, and second, that the levy on Flight Kitchen did not constitute an unlawful trespass.

Seven-Up disclaims any responsibility for the conduct of Levitón, first, because it views him as an independent contractor as a matter of law. It is argued that whether one views Levitón as an independent contractor working for Dun & Bradstreet or as an independent contractor working for Seven-Up, the important matter is the absence of any control by Seven-Up which is necessary to establish liability on its part. (Henry v. Industrial Commission, 412 Ill. 279, 106 N.E.2d 185.) Heavy reliance is placed on Weinrob v. Heintz, 346 Ill.App. 30, 104 N.E.2d 534. In that case a lawyer filed a complaint alleging negligence in the operation by the defendant of a motor vehicle while he was a passenger. The defendant requested the submission of a special interrogatory to the jury inquiring whether the plaintiff should be considered to have been in the employ of a certain corporation at the time of the accident, thus presumably entitling him to a remedy under the Workman’s Compensation Act and precluding his recovery against the defendant. The court found no evidence to support the submission of the special interrogatory, and held, specifically under the factual situation presented, that the plaintiff was exercising an independent discretion and judgment while acting for his client. This case is clearly not controlling here, where the plaintiff asserts liability of a client for the acts of his attorney in pursuing a legal proceeding on behalf of the client.

Seven-Up asserts that by the very nature of his duties and responsibilities, an attorney is better characterized as an independent contractor rather than as an agent. Seven-Up cites no case, however, and we are aware of none, which holds that an attorney who files a suit and obtains a judgment for someone is an independent contractor. In Oberne v. O’Donnell, 35 Ill.App. 180, and Golden v. Cervenka, 216 Ill.App. 397, both relied on by the defendant, we find no such general proposition enunciated, but rather find that under the facts presented in those cases, which are clearly disparate from the facts of the instant case, the client was not properly bound by the acts of the attorney. The general rule, as we understand it, is that a client is bound according to the ordinary rules of agency by the acts of his attorney within the apparent scope of his authority (Bond v. Duntley Manufacturing Co., 195 Ill.App. 576 (abstract opinion)), and this rule may be extended to hold a client liable for an injury to a third person resulting from an act of the attorney which is within the scope of the attorney’s authority (see 7 C.J.S. Attorney and Client §68 (1937); Restatement (Second) of Agency § 253 (1958); see also Atlantic Co. v. Farris, 62 Ga.App.212, 8 S.E.2d 665).

A second variation on Seven-Up’s contention that Levitón was not its agent is based on a review of the facts presented. It is urged that Seven-Up had no control over Levitón, that Levitón looked to Dun & Bradstreet as his employer, that Seven-Up had nothing whatsoever to do with hiring him, that it likewise had nothing to do with the decision to sue Plan for Hospital Foods, and lastly that it was not even aware of the levy until informed of it by Dun & Bradstreet.

Our view of the facts compels us to reject Seven-Up’s argument. The sole issue before us concerns the levy ordered by Levitón. It is undisputed that he obtained a judgment in the name of Seven-Up against Plan for Hospital Foods. It can hardly be said, from the evidence, that Seven-Up was unaware of this, or that it did not know that Levitón was proceeding to levy on the premises at 9561 Franklin. Indeed Seven-Up executed a bond for that reason with full knowledge that a levy was to be made for the purpose of satisfying its judgment against Plan for Hospital Foods. Had it not executed the bond neither the sheriff nor Levitón could proceed to levy. It is clear to us that Levitón was not only acting as Seven-Up’s agent within the scope of his authority, but that he was also acting with the full knowledge and direction of his client Seven-Up.

We next consider Seven-Up’s contention that the levy on the Flight Kitchen property did not constitute an unlawful trespass. This argument is premised on Seven-Up’s claim that the court should have disregarded the separate corporate entities of Flight Kitchen and Plan for Hospital Foods as a matter of law because Adam Senese, the president of both corporations, consistently held out the corporations as having one single identity and operated them out of one pocket, and that the corporations were for all practical purposes one and the same.

Seven-Up directs our attention to Holland v. Joy Candy Manufacturing Corp., 14 Ill.App.2d 531, 145 N.E.2d 101. That case involved a suit against two corporations for services performed by the plaintiff in the preparation and placing of advertising for a candy product manufactured by one corporation and retailed by the other. Originally the entire candy business was operated as a partnership. The partners later organized the two corporations. The stock in both corporations was divided equally between them and both were officers and directors of the two companies. Later the widow of one of the original partners acquired all of the stock in both corporations. As president, treasurer, and director of both corporations, she actively managed them from the same building where they both had their offices. Both had the same telephone number, switchboard, bookkeeper, time clerk and desk. Statements for plaintiff’s services were sent to both companies. The appellate court found that the trial court was justified in viewing one corporation as a “mere instrumentality” of the other corporation, and held that “the affairs of the two corporations were so managed and controlled by the same interlocking officers, directors and single stockholder, as to constitute one corporate entity in its dealings with creditors.” 14 Ill.App.2d at 535, 145 N.E.2d at 104.

The facts of the instant case show that Adam Senese was indeed president and also registered agent of both corporations, and that the registered address of both corporations was 9561 Franklin Avenue, Franklin Park, Illinois. The ownership of the corporations, however, was distinct. The shareholders of Flight Kitchen were Cecilia Senese, 3,997, Zanida Irace, 1000 shares, and Allan Smietanka, Joseph Smietanka, and Adam Senese, one share each. The shares of stock in Plan for Hospital Foods were equally divided between Frank Smietanka, Ed Garrigan and Adam Senese. The physical operations of the two corporations were also distinct. Flight Kitchen catered to various airlines by providing them primarily with frozen meals and sometimes with hot or “chilled” food. Its place of business was at 9561 Franklin in Franklin Park, Illinois, where all of its equipment was also located. Plan for Hospital Foods never operated at the above address, only at Northlake Hospital at 365 East North Avenue in Northlake, Illinois. Its only function was to prepare and set up the foods for the patients in that hospital. The corporation employed approximately 12 to 14 employees at the hospital who prepared the food and one girl who took care of administrative duties.

Seven-Up points to testimony by Mr. James McGuire, division sales manager for Chicago Seven-Up, that credit was extended to Plan for Hospital Foods only because Seven-Up already did business with Senese through Flight Kitchen. When Plan for Hospital Foods became delinquent, McGuire said he was told by Senese that the bill could not be paid until the airlines paid money owed to Flight Kitchen. When Senese did make a $100 payment on the Plan for Hospital Foods account, the check was drawn on Flight Kitchen. A second $100 check bounced. Further testimony shows that at Seven-Up, the accounts of the two corporations were not separate, and Plan for Hospital Foods was billed at the registered address of the corporation. This, claims Seven-Up, is overwhelming evidence that the two corporations were run from one pocket.

It is undisputed, however, that tire Seven-Up beverage was ordered by Senese for the hospital and delivered there. McGuire himself testified that when Senese explained why the account was not paid, he (McGuire) said: ‘Well, were not doing business with the airlines. Were doing business with you at the Northlake Hospital. And this product that we had sold you delivered to the hospital has subsequently been sold to the hospital * * The levy as already indicated was conducted at 9561 Franklin and not at the hospital where Plan for Hospital Foods operated its business.

We note at the outset that Seven-Up did not institute any proceeding in an attempt to pierce a corporate veil or have one corporation deemed liable for the others debts. (Cf. Holland v. Joy Manufacturing Corp., 14 Ill.App.2d 531, 145 N.E.2d 101.) It merely took the position that the two corporations were operated as one and levied on the property of Flight Kitchen on the basis of a debt owed by Plan for Hospital Foods. The doctrine of corporate entity is clearly one of substance and vitality. It is to be ignored with caution only when circumstances clearly justify it. (Superior Coal Co. v. Department of Finance, 377 Ill. 282, 36 N.E.2d 354.) Any uninduced expectations, misunderstanding, or presumptions as to the legal status of the corporations on the part of Seven-Up hardly entitled it to levy with impunity on goods belonging to a corporation other than the one against which the judgment was obtained.

Furthermore we feel the evidence indicates that the two corporations were not properly considered the same. They operated different types of businesses at different locations. Their structures were distinctly different. It is undisputed that Seven-Up sold its product to Plan for Hospital Foods on credit at the hospital premises. We find no error in the trial court’s failure to disregard the separate corporate entities as a matter of law and in its decision to submit the question of an unlawful trespass to the jury. The other case authority cited by Seven-Up clearly does not compel a different conclusion.

It is next contended that the damages awarded to Flight Kitchen are excessive as a matter of law since there was insufficient evidence to sustain the general damages awarded and the jury should not have been allowed to consider the question of punitive damages.

As to the general damages, it was stipulated by the plaintiff during trial that its only claim therefore was based on the loss of perishable foods. The evidence shows without contradiction that the sheriff padlocked the premises and Flight Kitchen was shut down. Adam Senese testified that at that time a freezer on the premises measuring 30 feet long by 12 feet wide was completely loaded with raw meat and completed frozen meals and vegetables. He said there were about 465 chilled casseroles and 5500 to 7500 frozen plates containing filet mignon, lobster thermidor, swiss steak, chicken kiev, and chicken cordonbleu. Depending upon whether the flight was a domestic airline flight or an international flight, tlie price of each of the meals ranged from $2.75 to $5.75. Walter Leski, a health officer for the Village of Franklin Park, who cleaned out the Flight Kitchen premises in September of 1967, testified that in addition to the prepared foods there were lobster tails, choice cuts of beef, and every other type of food imaginable in a state of decay and that the stench was unbearable. He was at the premises from approximately 10 A.M. to 5 P.M. during which time men carried out the food in garbage cans and filled a scavenger truck to capacity.

It is argued that the testimony of Senese was sheer speculation and insufficient to prove the value of the loss and that all of the above testimony was insufficient to sustain the general damages awarded. We initially agree with Seven-Up that in an action for damages for destruction of personal property, the plaintiff has the' burden of establishing the damages which result from the defendant’s tortious act. (New York, Chicago & St. Louis R.R. Co. v. American Transit Lines, Inc., 408 Ill. 336, 340, 97 N.E.2d 264; 266.) We disagree, however with Seven-Up’s contention that this burden was not met. The record reveals that Senese had been in the airline catering business for 18 years and that he could validly fix the value of the foodstuffs involved. The weight of his testimony was for the jury. Corroborative testimony shows that all of the food was completely destroyed. We feel the fact of damage seems clear, and that the testimony provided sufficient criteria for the jury in determining the amount of damage incurred. In City of Joliet v. Fox, 135 Ill.App. 444, cited by Seven-Up, there was no testimony at all relating to the dollar value of certain items of damage alleged, which were susceptible of proof in terms of dollars and cents, thereby clearly distinguishing that case from the case at bar.

Seven-Up also urges that since the testimony of Senese was essential to the plaintiff’s case on damages, the court erred in refusing to allow impeachment of Senese’s credibility by means of extrinsic evidence, i.e., the testimony of three witnesses. It is contended that the witnesses’ testimony, as illustrated by an offer of proof, would have contradicted Senese’s statements that he had discontinued any catering business after the levy in August of 1967.

We have reviewed Seven-Up’s offer of proof and hold that the court committed no error in barring the evidence. The general rule is that extrinsic evidence of self-contradiction is not allowed on matters “collateral” to the case in chief. (3 Wigmore, Evidence § 1020 (3d ed. 1940).) Here Senese’s activity subsequent to the time losses were incurred as a result of the levy was in no way at issue in the case. Damages were sought only for the loss of the food on the premises at the time of the levy, and not for the loss of any future business. Since we perceive no purpose, independent of the self-contradiction, for which the proffered testimony could have been allowed into evidence, the testimony was not improperly excluded.

Regarding the punitive damages awarded, Seven-Up contends that the jury should not have been allowed to consider them and that there was insufficient evidence to warrant an instruction on the matter. Furthermore, the instruction given is claimed to have improperly defined "wilful and wanton conduct” as that term is employed in trespass actions based on improper levy.

Seven-Up asserts first that to establish a case for punitive damages in a trespass action based on an improper levy, merely showing that the defendant was warned that he was levying on the wrong property is not sufficient if he has a reasonable belief that his claim to the property is just. Primary reliance is placed on Beveridge v. Rawson, 51 Ill. 504, where the goods of one other than the judgment debtor were also seized upon execution. Exemplary damages were awarded, but the Illinois Supreme Court reversed, finding error in the instruction given the jury regarding them. The instruction proposed:

“If the jury find for the plaintiff, and also believe from the evidence that the defendants were repeatedly and positively warned that the property taken by them was the property of the plaintiff, then the plaintiff is entitled to exemplary damages, and the jury are the judges of the amount to be so given.” 51 Ill. at 505.

The court there found that the defendants, in enforcing execution on the goods, were acting in pursuance of what they conceived was a just claim, and that they should not be held liable for punitive damages merely because they were warned of a claim to the goods by the plaintiff, as the instruction stated. Just because the goods were seized against the remonstrances of the plaintiff could not of itself show that the seizure and sale were malicious, and, “[i]n the absence of malice, or abuse of process, or a desire to do injury, damages should be compensatory only.” (51 Ill. at 506.) The court concluded by noting that it appeared that more than one-half of the damages awarded in the case were punitive. Seven-Up urges that, even assuming it received warnings against levying on the goods in the case at bar, there was considerable testimony that the two corporations were really operated as one, and that therefore there was, based on Beveridge, no ground for punitive damages.

Seven-Up also relies on Beveridge in urging that the instructions given in the instant case regarding punitive damages were improper, thus requiring reversal even if there was sufficient evidence to submit the issue to the jury. The instructions were as follows:

“If you find that the Defendant was guilty of wilful and wanton conduct which proximately caused injury to the Plaintiff and if you believe that justice and the public good require it, you may, in addition to any damages to which you find the Plaintiff entitled, award the Plaintiff an amount which will serve to punish the Defendant and to deter others from the commission of like offenses.
When I use the expression wilful and wanton conduct’ I mean a course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for the property of the Plaintiff.”

Seven-Up argues that the latter instruction accurately defines “wilful and wanton conduct” as it is used in “guest statute” cases, but not in trespass actions based on improper levy. Since the Beveridge opinion indicates that mere warnings are insufficient to sustain a finding of punitive damages, and employs the phrase “desire to injure” to gauge conduct worthy of such damages, “[i]t is clear that something more than an indifference for the property of the plaintiff is required” to allow punitive damages. The instruction given is therefore presumably deemed erroneous for allowing recovery where there is an “utter indifference” to the property of another.

Directing ourselves first to the claimed error in the instruction, we recognize that “malice” (Beveridge v. Rawson, 51 Ill. 504) and “wanton and wilful conduct” (Miller v. Kirby, 74 Ill. 242) are indeed a basis for granting exemplary damages. But our reading of Beveridge in no way indicates to us that punitive damages are precluded where an “utter indifference” to another’s property can be demonstrated, nor that a specific “desire to injure” is a sine qua non to the imposition of punitive damages for improper levy. Malice can be inferred (Taneski v. St. Louis Merchants’ Bridge Terminal Ry. Co., 230 Ill.App. 300), and conduct “wanton, reckless, and in a large degree lawless” has also been used as a standard for determining the imposition of punitive damages in a situation similar to the case at bar (Walter v. Kirsch, 143 Ill.App. 314). We therefore feel here that the court’s instruction defining “wilful and wanton” was a proper statement of the law.

We consider next then whether the jury was entitled to find under the evidence that Seven-Up acted wilfully and wantonly, as properly defined in the instruction, in levying on Flight Kitchen’s property. The evidence shows that Seven-Up procured a judgment against Plan for Hospital Foods and on August 2, 1967, levied against the property of Flight Kitchen at 9561 Franklin in Franklin Park. Although this was the registered address of Plan for Hospital Foods, it was not where that corporation operated its business nor where the product of defendant Seven-Up was delivered. The only business sign on the premises identified it as that of Flight Kitchen. Before the deputy sheriff proceeded to levy he was informed by Adam Senese that the property belonged to Flight Kitchen and that he was at the wrong place. The deputy then called Levitón, the attorney who had ordered the levy, and told him of the claim that the property did not belong to the debtor. He said Levitón told him that it was probably a cover-up, and that he should proceed with the levy and close the business unless a $250 payment was immediately paid on the account. Senese called his attorney, then made out a check for $250, writing on the back of it “under duress.”

On August 9, 1967, the attorneys for Flight Kitchen informed Levitón by letter that not only had he instigated a levy against the wrong party, but that the levy was being made on property worth over $60,000. The judgment being enforced was for $1499.60. They reminded him that on August 2 they had advised him that the wrong party was being levied against and they were now putting him on notice of the error. They also stated that Flight Kitchen had informed them that under duress and solely to protect its business from irreparable damages it had issued a $250 check, and that any further malicious interference with the conduct of the business of their- client would not be tolerated and Seven-Up would be held accountable for damages which could exceed $100,000. A copy of the letter was sent to Seven-Up. James A. Lang, Chicago Seven-Up’s director of finance and an attorney, testified that he received a copy of the letter and discussed it with his superiors. The collection of the debt was one of his responsibilities. He knew that a levy was being made and that Seven-Up had signed a bond for that purpose. On August 28, 1967, despite the foregoing, the deputy sheriff again appeared at the premises on orders of Levitón, padlocked it, and seized all of Flight Kitchen’s property. No prior attempt to secure a judicial determination that Flight Kitchen was legally responsible for the debt of Plan for Hospital Foods is apparent.

It is axiomatic that one who places a levy must exercise great care to protect the rights and property of persons who are not the judgment debtors. We feel that under all the evidence the jury could properly find that Seven-Up acted with (in the language of the instruction properly given) “an utter indifference to or conscious disregard for the property of the Plaintiff.” We note too a much higher verdict could have been supported by the evidence.

Seven-Up next raises a series of alleged trial court errors which it feels precluded the possibility of a fail- trial and an unbiased verdict in its favor. It is asserted that reference by plaintiff’s counsel, by one of plaintiff’s witnesses, and by the trial judge to Levitón as the “attorney” for Seven-Up prejudiced a favorable finding on the ultimate issue of his status in relation to Seven-Up. In this regard we note that it is difficult to perceive how a lawyer can file a lawsuit and levy an execution on behalf of someone to collect a debt owing to that individual and not be deemed, at least in common parlance, the “attorney” for that person. In any event the ultimate question here was not whether Levitón was “attorney” for Seven-Up in that sense, but whether Seven-Up was hable for certain of his actions. We therefore find no error. It is also asserted that the admission of testimony as to certain statements made by the deputy sheriff while executing the levy was improper and prejudicial; that a remark by plaintiffs counsel in his opening statement and by one of plaintiffs witnesses while testifying that Plan for Hospital Foods ceased business because some third party owed it money created improper prejudice and sympathy for the plaintiff in the minds of the jurors; that a remark by plaintiff’s counsel in closing argument, to the effect that if Seven-Up wanted to push the blame off on Dun & Bradstreet or the sheriff it should bring an action against them, raised a prejudicial inference that Seven-Up would not be harmed by an adverse verdict; that counsel for plaintiff argued facts not in evidence by alluding to alternative remedies available to Seven-Up in enforcing its judgment; and that undue restrictions placed upon Seven-Up’s counsel in the examination of witnesses and the court’s refusal to admit certain documents precluded a fair trial. These alleged errors need not be detailed at any length here, for the ultimate question on this appeal is not whether the trial was scrupulously free from error, but whether any error occurred which operated to the prejudice of the defendants or unduly affected the outcome. (Moore v. Jewel Tea Co., 116 Ill.App.2d 109, 253 N.E.2d 636.) As in that case, when we consider the evidence which amply supports the jury’s verdict, as well as the law applicable to the alleged errors raised here, it is our conclusion that there is no error which would justify a reversal in this case.

Seven-Up next urges that the court erred in giving certain instructions and in refusing certain others. The contentions of error relating to the instructions given on the question of punitive damages have been dealt with earlier in this opinion, and we reaffirm our position that those instructions were proper. It is also asserted that plaintiffs instruction number three was improper because it allowed the jury to “fix the amount of damages which will reasonably compensate the Plaintiff for the damage to its property proved by evidence to have resulted from the wrongful conduct of the Defendant.” Since the claim for general damages was limited to the loss of perishable foods, this instruction is argued to have allowed the jury to speculate on damages. We find this to be no ground for reversal, especially since instruction number 15 submitted by Seven-Up informed the jury that if it found for the plaintiff, it “must then fix the amount of money which will reasonably and fairly compensate him for the loss of perishable goods.” It should also be noted that the amount of $12,000 in general damages awarded was quite low based on the evidence presented as to the value of the perishable foods destroyed. We further find no error in the court’s determination to refuse Seven-Up’s instruction number 9, defining the distinction between an agent and an independent contractor, for reasons sufficiently advanced earlier in this opinion. Nor do we find any ground for reversal in the court’s decision to give the full Illinois Pattern Jury Instruction on proximate cause (IPI — Civil § 15.01 (1961)), which included the bracketed section containing the law on concurrent causation. It reads:

‘When I use the expression ‘proximate cause’, I mean a cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]”

We fail to see how this instruction could reasonably have suggested to the jurors that they might find Levitón was not Seven-Up’s agent and yet still find Seven-Up liable as is contended. Rather there is merit in plaintiff’s response that without the full instruction the jury may have exonerated Seven-Up, even if vicarious liability was established, if it felt that a more immediate cause was the actions of one of the others involved.

Seven-Up finally asserts error in that provisions for both general and punitive damages were included on the same yerdict form and not placed on separate forms. This is asserted to have confused the jury by suggesting that it had to find both kinds of damages. We are not in accord. The jurors were orally instructed by the trial judge that they were “not required to find both compensatory damages and punitive damages,” and even though “both [were] on the same verdict form” the jurors “need not find punitive damages unless that is your decision.”

In view of all the foregoing, the judgment of the circuit court is affirmed.

Affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE DIERINGER

text:
    Georgia M. Klomann, Plaintiff-Appellee, v. Sol K. Graff & Sons et al., Defendants—(Robert J. Graff, Defendant-Appellant).
    (No. 58638;
    First District (4th Division)
    August 28, 1974.

      Rehearing denied October 24, 1974.

    Rolland H. Stimson, of Chicago, for appellant.
    Ebers, Metskas, Bjorvik & ICyros and Associates, of Chicago, for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The plaintiff brought suit to recover monies from the defendants based upon three promissory notes. The court granted plaintiff’s motion for summary judgment on Count II of the complaint and entered judgment against defendant Robert J. Graff.

The issue presented on appeal is whether the court erred in finding there was no genuine issue as to any material fact relating to Count II of the complaint and entering judgment thereon.

Sol K. Graff & Sons, a partnership conducting business as real estate brokers, negotiated the trade and sale of certain parcels of real estate on behalf of Fred Klomann. The transactions culminated in the purchase by Fred Klomann of the Countryside Shopping Plaza, and the partnership, Sol K. Graff & Sons, owing Fred Klomann $13,000. On August 31, 1967, defendant Robert J. Graff, one of the partners of Sol K. Graff & Sons, executed three promissory notes naming Fred Klomann as payee on each note. One note in the sum of $5,000 was signed “Sol K. Graff & Sons by Robert Graff.” The two additional notes in the sum of $4,000 each were signed “Robert J. Graff.” Simultaneously with the execution of the notes by the defendant, Fred Klomann gave Sol K. Graff & Sons an exclusive agency contract for the sale of said Countryside Shopping Plaza. The partnership was also retained to manage the shopping center with the oral stipulation that monies earned by Sol K. Graff & Sons for the management of the shopping center would be applied as a set-off against monies owed by Sol K. Graff & Sons to Fred Klomann.

Robert J. Graff (hereinafter referred to as defendant), acting on behalf of Sol K. Graff & Sons, managed the shopping center from August 31, 1967, to October 1, 1971. The defendant estimated the value of his services as manager of the plaza to be $300 per month, thereby accumulating $14,700 in credits to Sol K. Graff & Sons.

Fred Klomann held the three notes in question for a period of time and then by special indorsement gave the notes to his daughter, Candace Klomann. Fred Klomann signed the notes and handed them to Candace. She examined the notes and then handed them back to Fred for collection. In April, 1970, Fred Klomann scratched out Candace’s name in tire special indorsement, inserted the name of his wife, Georgia Klomann, and delivered the three notes to Georgia.

On May 18, 1971, the plaintiff, Georgia Klomann, brought suit against Sol K. Graff & Sons and Robert J. Graff in two counts for the value of the three notes. Count I sought judgment against Sol K. Graff & Sons and Robert J. Graff based upon the single promissory note in the amount of $5,000. Count II sought judgment against Robert J. Graff based upon the two promissory notes in the amount of $4,000 each. Plaintiff filed a motion for summary judgment as to Count II alleging the monies earned by the defendant could not be taken as a set-off against monies due Fred Klomann on the notes executed by Robert J. Graff individually.

On November 17, 1972, the trial court sustained the plaintiff’s motion for summary judgment and entered judgment for plaintiff on Count II of the complaint.

The defendant contends the plaintiff has no right, title or interest in the promissory notes, thereby raising an issue of fact which precluded the entry of summary judgment in favor of the plaintiff.

The plaintiff maintains the defense of whether Georgia Klomann has an interest in the notes is not available to the defendant. In support of her contention, the plaintiff relies on section 3 — 306(d) of the Uniform Commercial Code (Ill. Rev. Stat. 1971, ch. 26, par. 3 — 306(d)), which provides:

“Unless he has the rights of a holder in due course any person takes the instrument subject to * * # (d) the defense that he or a person through whom he holds the instrument acquired it by theft, or that payment or satisfaction to such holder would be inconsistent with the terms of a restrictive indorsement. The claim of any third person to the instrument is not otherwise available as a defense to any party liable thereon unless the third person himself defends the action for such party.” (Emphasis added.)

We believe the plaintiff has no right, title or interest in the promissory notes. Section 3 — 204 of the Uniform Commercial Code (Ill. Rev. Stat. 1971, ch. 26, par. 3 — 204) provides:

“(1) A special indorsement specifies the person to whom or to whose order it makes the instrument payable. Any instrument specially indorsed becomes payable to the order of the special indorsee and may be further negotiated only by his indorsement.”

A review of the record in the instant case reveals Fred Klomann specially indorsed the promissory notes to his daughter, Candace, in August, 1967. The notes, therefore, could only be further negotiated by Candace. Examination of the record further reveals Candace, the special indorsee, has never negotiated the notes. Fred Klomann, in April, 1970, improperly scratched out Candace’s name in the special indorsement and inserted the name of his wife, Georgia. Section 3 — 201 of the Uniform Commercial Code (Ill. Rev. Stat. 1971, ch. 26, par. 3 — 201) provides in pertinent part:

“(1) Transfer of an instrument vests in the transferee such rights as the transferor has therein * *

When Fred Klomann assigned the notes in question to his daughter he no longer had any interest in them. His attempted assignment to Georgia approximately 3 years later conveyed only that interest which he had in the notes, which was nothing. Plaintiff, therefore, has no interest in the notes sued on in the instant case. We do not believe, as the plaintiff contends, that the Uniform Commercial Code intends a situation where there is an indorsement to a second party (Candace Klomann) and delivery; second party gives the note back to the payee for collection; payee subsequently strikes the name of the indorsee and puts in the name of a third party (Georgia Klomann), to not allow the maker of the note to look into the situation and see where title really lies. The defendant in his answer to plaintiff’s complaint denied that plaintiff had any right, title or interest in the notes. Defendant also filed an affirmative defense alleging improper special indorsement. Furthermore, the defendant took the deposition of Fred Klomann wherein Klomann admitted he should not have scratched out the name of Candace Klomann and inserted the name of Georgia Klomann. We believe the trial court erred in striking the defendant’s affirmative defense and that part of the deposition of Fred Klomann which pertained to the question of rights in the notes. The question of Georgia Klomann’s interest in the notes was raised by the pleadings and was argued by the defendant at the first opportunity.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed and remanded.

Reversed and remanded.

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


author: Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Petitioner-Appellee, v. Paul Gerich, Respondent-Appellant.
    (No. 59584;
    First District (4th Division)
    August 28, 1974.

      Paul Bradley and Lynn Sara Trackman, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and William F. Linkul, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

On February 16, 1972, Paul Gerich was found to be a “person in need of mental treatment” at a hearing before the Honorable Robert J. Dempsey sitting without a jury. The court ordered that respondent be kept for treatment at Chicago State Hospital. He was released on an absolute discharge February 29, 1972, but urges in this appeal that the order be vacated and expunged from his records.

The issues presented for our review are:

1. Whether the evidence supported the court’s finding that respondent was a person in need of mental treatment; and
2. Whether the procedures used to obtain respondent’s hospitalization complied with the requirements of the Illinois Mental Health Code. Ill. Rev. Stat. 1971, ch. 91%.

On February 9, 1972, a petition for hospitalization was filed in the circuit court of Cook County by Joan S. Frenz, alleging that respondent was a “person in need of mental treatment” as defined in section 1 — 11 of the Mental Health Code. (Ill. Rev. Stat. 1971, ch. 91%.) The petition stated: (1) the nearest known relative of respondent was his brother, John Gerich, of 3719 South 57th Avenue, Chicago; (2) respondent was presently in the custody of the circuit court at the House of Correction; (3) the facts supporting the allegation that respondent was in need of mental treatment could be proved by the certificate of Dr. Eugene Stern, a physician at 1121 South State Street, Chicago, who had personal knowledge of the case; and (4) this was an emergency case in that respondent was likely to physically harm himself or others if not hospitalized immediately.

The petition stated no other factual basis for the opinion. However, attached to the petition was a certificate of need for hospitalization filed by Eugene Stern, M.D., stating that he examined respondent on February 9,1972, and found:

“Patient to be virtually totally deaf and unable to verbalize in an intelligible manner. Patient was interviewed by written notes and his response showed confusion and his replies were quite irrelevant. He admits to past care at Kankakee State. There is disorientation as to time and place. He admits to recent and past alcoholic excess. Judgment is poor. He notes that he has no funds. He appears bewildered and perplexed. He is presently unable to care for himself. Diagnosis: Organic Brain Syndrome associated with alcoholic deterioration.”

The certificate concluded with Dr. Stern’s opinion that respondent was in need of mental treatment and should be admitted to a hospital immediately as an emergency for the protection from physical harm to himself and others.

Respondent was admitted to the Chicago-Read Mental Health Center on February 9, 1972, pursuant to the emergency admission provisions of the Mental Health Code. (Ill. Rev. Stat. 1971, ch. 91%, §7 — 1.) On February 10, 1972, he was examined by Dr. Emillio Jomarron, who filed a Certificate of Need for Hospitalization which stated the following findings:

“Confused, disoriented as to time and place. Almost incoherent. Remarkable [sic] impaired intellect. Confabulatory. History of Alcoholism. [Diagnosis:] C.B.S. and alcoholism.”

On February 16, 1972, a hearing was held on the petition before the Honorable Robert J. Dempsey. Respondent was represented by the Cook County public defender. His counsel stated to the court that respondent had a hearing problem which made consultation difficult and that their only communication had been by written notes.

A social worker testified that he had been in contact with John Gerich, respondent’s brother, who was unable to testify because of his own ill health but had given background information concerning respondent. According to the social worker, John Gerich stated that he was neither willing nor able to care for respondent at his home. The social worker further testified that respondent had only a second-grade education, his "main problem” was old age and difficulty in communicating with others, he was able to write but in a very confused manner, and he had claimed to have been living with his brother but the brother denied that he had.

Dr. Emillio Jomarron testified regarding his examination of respondent as follows:

“The patient is confused, disoriented as to time and place, almost incoherent. He was manifesting almost impaired intellect and at times appeared to be somewhat unconfabulatory [sic]. He had some history of alcoholism and diagnosis was chronic brain syndrome with alcoholism and he appeared not to be able to take care of himself.”

Respondent was able to identify himself to the court and stated that his father and son were of the same name as he. He told the court that he was 50 years old and had worked at all kinds of jobs. Although some of his responses demonstrated rational thought processes, respondent made references to his ‘boss,” “Radaboy,” his attempt to locate or help a policeman, and the White House as his place of birth.

At the conclusion of the hearing, the court entered a finding that respondent was a person in need of mental treatment to be kept for treatment at Chicago State Hospital (Chicago-Read Mental Health Center). On February 29, 1972, respondent was released from the hospital on an absolute discharge.

The first issue respondent raises in this appeal is that the evidence produced at the hearing failed to substantiate the court’s finding that he was a “person in need of mental treatment.” He urges us to apply the standard of reasonable doubt but argues that the evidence was insufficient even under a lesser standard. Instead of showing that he was in need of mental treatment, respondent contends, the evidence merely portrayed him as “a somewhat confused, old, deaf man who could not support himself and who was unwanted by his family.”

The People insist that the evidence was sufficient to find respondent in need of mental treatment on the ground that he could reasonably be expected to unintentionally harm himself or that he was unable to care for himself.

The Mental Health Code defines a “person in need of mental treatment” as:

“* * * [A]ny person afflicted with mental illness, not including a person who is mentally retarded, as defined in this Act, if that person, as a result of such mental illness, is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself so as to guard himself from physical injury or to provide for his own physical needs. This term does not include a person whose mental processes have merely been weakened or impaired by reason of advanced years.” Ill. Rev. Stat. 1971, ch. 91%, § 1 — 11.

We note that the statutory definition specifically excludes the mentally retarded and those who are enfeebled by old age. However, in our opinion, there was sufficient evidence to support the trial court’s finding on the ground that respondent was unable to care for himself.

The evidence showed that respondent was examined by two psychiatrists, both of whom diagnosed his condition as chronic brain syndrome. The American Psychiatric Association (Committee on Public Information, 1964), defines this disorder as follows:

“An organic psychiatric disorder characterized by impairment of orientation, memory, intellectual functions and judgment, together with emotional instability * ®

Both of the psychiatrists who examined the respondent specifically found that he was unable to care for himself. Moreover, there was testimony that respondent’s only known relative was unable to care for him. Finally, respondent’s own responses during the hearing indicated some distortion which could reasonably lead the court to conclude that he was confused, disoriented and would have difficulty caring for his own needs.

In view of the foregoing, we hold that the evidence was sufficient to support the court’s finding that respondent fell within the statutory definition of a person in need of mental treatment on the ground that he was unable to care for himself at the time of the hearing.

Secondly, respondent contends that the procedures employed to obtain his commitment failed to satisfy the requirements of the Code.. He argues that the procedural deficiencies were three-fold: (1) the petition did not set forth sufficient information and adequate notice of the particular charges against him; (2) respondent was not advised of, and therefore did not waive, his right to a jury trial; and (3) he was not afforded effective assistance of counsel.

With respect to the sufficiency of the petition, respondent contends that, it was fatally defective because it provided neither the reason why immediate hospitalization was necessary nor witnesses who could prove the facts asserted therein. He argues that the failure to provide the names of witnesses was prejudicial in that it was the basis for his emergency detention from February 9, 1972, to February 16, 1972, and, further, precluded him the opportunity of preparing his defense for the February 16,1972, hearing.

In our opinion, the petition should be considered in its entirety. We will not reverse on account of minor deviations in form which cause no prejudice to the respondent. After careful consideration, we find that the petition, when read in its entirety, substantially complied with the statutory requirements.

The petition alleged that an emergency existed in that respondent was likely to physically harm himself or others if not immediately hospitalized. It further stated that the facts supporting the allegation that respondent needed mental treatment could be proved by the certificate of Dr. Eugene Stern. Dr. Sterns certificate, which was attached to the petition, stated that respondent was confused, disoriented as to time and place, exhibited poor judgment, appeared bewildered and perplexed. These facts, in our opinion, supported the conclusion that emergency hospitalization was necessary so that respondent would not harm himself. Thus, we find that the petition and the certificate, when read together, substantially complied with the statutory requirements for emergency admission. Ill. Rev. Stat. 1971, ch. 91Vz, § 7 — 1.

Further, we disagree with respondents contention that he was prejudiced by the failure to list the names of witnesses. Although the space specifically provided for listing the names of witnesses was left blank, the identity of the witness was disclosed elsewhere in the same petition. It alleged that the facts supporting the assertion that respondent was in need of mental treatment could be proved by the certificate of Dr. Eugene Stern, a physician who had personal knowledge of the case. Therefore, we find that respondent was not prejudiced by the failure to list in the designated space the names of witnesses to the facts asserted where the identity of the witness was disclosed elsewhere on the face of the petition.

The second procedural deficiency raised by the respondent is that he was not advised of, and therefore did not knowingly waive, his right to a jury trial. As authority for his argument, respondent cites Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709. We do not believe Boykin is controlling here inasmuch as it applied to persons charged with criminal offenses. Moreover, in People ex rel. Keith v. Keith (1967), 38 Ill.2d 405, 231 N.E.2d 387, the Supreme Court of Illinois specifically held that the constitution of Illinois does not require a jury trial in a proceeding to commit for mental treatment.

Further, we find no support for respondent’s contention in the applicable statute. It provides:

“The patient, his spouse, any relative or friend, or an attorney appearing for any of them, may demand that the question of need for mental treatment or need of treatment for mental retardation be heard by jury. The jury shall consist of 6 persons to be chosen in the same manner as are jurors in other civil proceedings.” (Ill. Rev. Stat. 1971, ch. 91%, § 9 — 2).

In our opinion, the statute only grants the right to a jury trial if one is requested. Neither the respondent nor his attorney demanded a jury trial in the instant case. Therefore, we find no violation of the statute in this regard.

Finally, respondent urges us to reverse on the ground that he was not afforded effective assistance of counsel. He contends that appointed counsel inadequately represented him in that he did not cross-examine the State’s witnesses, provided the court with little substantive information about his client, and failed to act as his client’s advocate.

As we have indicated, respondent had severe communication problems. His only communication with others was by written notes and a pattern of speech that was largely disorganized and unintelligible. The social worker testified regarding several attempts to communicate with respondent by written notes which displayed the same disorganized style and content that was evident in his oral communication. His counsel advised the court that respondent had a hearing problem which made consultation difficult and that their only communication had been by written notes.

It is apparent that counsel was confronted with an extremely difficult task owing to his client’s inability to communicate. Counsel’s ability to obtain a clear picture of respondent’s predicament was limited. In view of these circumstances, we think that the public defender did as much as could reasonably be expected. Therefore, we hold that respondent was afforded effective assistance of counsel in view of the limitations that existed.

Because of the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

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


text:
    The People ex rel. William J. Scott, Attorney General, Plaintiff-Appellant, v. Steelco Chemical Corporation et al., Defendants-Appellees.
    (No. 59798;
    First District (4th Division)
    August 28, 1974.
    William J. Scott, Attorney General, of Chicago (Lee A. Campbell, Kenneth J. Gumbiner, James I. Rubin, and Richard W. Cosby, Assistant Attorneys General, of counsel), for appellant.
    Sherwin J. Stone and David C. Roston, both of Chicago (Lieberman, Levy, Baron & Stone, of counsel), for appellees.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court;

This is an appeal from a judgment entered by the Circuit Court of Cook County. Plaintiff brought an action to enjoin the defendant from conduct which was alleged to constitute a continuing threat of air pollution and to seek a civil penalty for alleged violations of the Environmental Protection Act. Following a bench trial, the court entered judgment in favor of the defendant.

The issues presented on appeal are (1) whether the trial court committed prejudicial error in excluding expert testimony tendered by the plaintiff; and (2) whether the findings on the issues of permanent injunction and penalties denied plaintiff due process of law.

K. A. Steel Chemicals, Inc., was incorporated in 1952. Subsequently a second corporation, Steelco Chemical Corp., was formed. It was merged into K. A. Steel Chemicals, Inc., on June 1, 1973. As a result, there is only one defendant in this action. (The merged corporation will hereinafter be referred to as “Steelco”.) Mr. Kenneth A. Steel is the president of Steelco, and he and his wife own all of its stock. Steelco s primary business is the sale of chemicals used for the purification of water and treatment of sewage. It sells chlorine, which it purchases in bulk and transfers to steel cylinders, and manufactures and sells sodium hypochlorite and ferric chloride. Steelco began to manufacture sodium hypochlorite in December, 1962. Six or seven years later it constructed the L-9 and L-10 reactors and the connected tanks, equipment, and buildings presently used in the manufacture of sodium hypochlorite.

On July 30, 1973, at approximately 9 P.M., Gregory Meisenbach was working the sodium hypochlorite reactors at Steelco. Upon arriving for work, Meisenbach had been given information on the purported status of tire L-9 and L-10 reactors with respect to the sodium hypochlorite production systems. The information was transmitted to Meisenbach by William Sennett, the shift foreman on duty. The information conveyed by Sennett improperly reversed the actual status of reactor tanks L-9 and L-10. Around 10:40 P.M. Meisenbach began chlorinating tank L-10. He did not test the excess alkalinity of tank L-10, relying on the status report given him by his foreman. As a result, the tank became over-chlorinated and chlorine gas was released into the atmosphere. As a result of the chlorine emission from the defendant’s facilities, 15 persons were given medical treatment or hospitalized.

On July 31, 1973, plaintiff filed a complaint for injunctive relief praying that defendant immediately be. enjoined from causing air pollution; that a hearing be set to determine the facts regarding the case; and that at said hearing the court permanently enjoin the defendant from causing air pollution. Coinciding with the filing of its complaint, plaintiff filed a motion for a temporary restraining order enjoining defendant from operating its facilities until the source of the chlorine discharge was identified and controlled. A hearing on plaintiff’s motion was held on the afternoon of July 31, 1973. At the hearing the court entered an order which granted the temporary restraining order, provided for inspection of defendant’s premises by personnel from the Illinois Attorney General’s office and the Illinois Environmental Protection Agency, and scheduled a hearing for August 3, 1973. By agreement of the parties and the court, the hearing was rescheduled for August 10, 1973, in order to permit a full-scale investigation at defendant’s plant by plaintiff’s experts.

On August 8, 1973, following the plant investigation by plaintiff’s experts, Dr. William Langdon and Mr, Howard Chinn, the plaintiff filed an amended complaint for injunction and penalties, alleging that defendant’s sodium hypochlorite production system contained “severe operational deficiencies.” Plaintiff’s amended complaint prayed that the defendant be immediately and permanently enjoined from operating its sodium hypochlorite production system. In addition, the amended complaint prayed that the trial court, after hearing all the evidence, enter an order imposing penalties against the defendant.

On August 10, 1973, the hearing on plaintiff’s amended complaint commenced. In support of its contentions regarding the “severe operational deficiencies,” plaintiff called Dr. William Langdon, a Ph.D. in chemical engineering and a professor of chemical engineering at the Illinois Institute of Technology, and Mr. Howard Chinn, a registered professional engineer, to give expert testimony. After preliminary and voir dire examination, the trial court excluded the testimony of plaintiff’s two expert witnesses on the ground that they had no experience in connection with the design, construction or operation of an industrial sodium hypochlorite facility.

On August 24, 1973, at the close of all the evidence, the trial court ruled against the plaintiff on all counts and dismissed the amended complaint.

The plaintiff contends the trial court committed prejudicial error in excluding the testimony of plaintiff’s proffered expert witnesses. In support of its allegations that severe operational deficiencies existed at defendant’s plant, the plaintiff offered the testimony of Dr. William Lang-don and Mr. Howard Chinn. The record reveals that Dr. Langdon is a professor of chemical engineering at the Illinois Institute of Technology in Chicago, having received a Bachelor of Science, a Master of Science, and a Ph.D. in chemical engineering, all from the University of Illinois. From 1943 to 1949, as an assistant professor at the University of Illinois, Dr. Langdon taught chemical engineering with special emphasis on design and installation. From 1949' to 1955, he was employed by the engineering firm of Graham Crowley and Associates as vice-president and director of research. From 1955 to 1968, he was a research engineer and was employed as an engineer with the Armour Research Foundation (presently called the Illinois Institute of Technology Research Institute). Dr. Langdon currently designs various types of equipment involved in chemical engineering and processes, and has designed, installed, operated, and tested over 25 complete pilot plants utilizing hazardous chemicals. The trial court refused to hear the testimony of Dr. Langdon on the ground that he had no experience in the design, construction, and operation of a plant manufacturing sodium hypochlorite. The record, with respect to Mr. Howard Chinn, shows he is a registered professional engineer. He has been employed since 1971 in the environmental-control division of the Attorney General’s office, most recently as the division’s chief engineer. From 1952 to 1959, Mr. Chinn was engineering project manager for the Vern E. Alden Consulting Company, where he supervised engineering design projects and was engaged in various projects related to the field of air-pollution control. From 1959 to 1960 he was a project engineer with MacDonald Engineering Company, where he worked on various projects in the field of particulate-air-pollution control. From 1960 to 1961, as the chief specifications engineer for the Sumner Sollitt Company, he supervised and coordinated the preparation of engineering specifications for the design and construction of industrial plants. From 1961 until 1971, Mr. Chinn worked for the engineering consulting firm of Sturm Engineers, where he was involved with various projects for the control or prevention of air pollution, including particulate and solvent vapor emissions. The trial court excluded the testimony of Mr. Chinn on the same ground used to exclude the testimony of Dr. Langdon, namely, the lack of experience in dealing with a plant manufacturing sodium hypochlorite.

We believe plaintiff’s witnesses were qualified to testify and the trial court abused its discretion in excluding their testimony. (Moren v. Samuel M. Langston Co. (1968), 96 Ill.App.2d 133.) The test for the admissibility of expert evidence or the qualifications of an expert witness was succinctly stated in Bollmeier v. Ford Motor Company (1970), 130 Ill.App.2d 844, 849, wherein the appellate court, quoting from the decision in Mahlstedt v. Ideal Lighting Co. (1915), 271 Ill. 154, 171, said:

“‘Expert evidence is admissible when the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge or experience an aid to the court or jury in determining the question at issue. * #

In Bollmeier, an expert witness was proffered to testify concerning automobile steering mechanisms. The automobile involved in the case was a Ford Thunderbird. While the expert witness had never worked on a Thunderbird steering mechanism, he had worked on and was familiar with other automobile power-steering components as well as other hydraulic equipment. The appellate court ruled that the trial judge abused his discretion in rejecting the opinion of the witness. The court stated:

“We believe the witness was shown to have sufficient experience and knowledge with respect to automobiles and other types of equipment to qualify as an expert.”

An evaluation of the record in the instant case clearly establishes that plaintiff’s expert witnesses possess qualifications sufficient to meet the requisites of competency for an expert. They have extensive knowledge and experience in the general fields of chemical engineering, industrial design, and the prevention and control of air pollution. None of these areas is a matter of common knowledge, and the opinions of Dr. Langdon and Mr. Chinn, founded on such knowledge and experience, would have been an aid to the court in determining whether severe operational deficiencies existed at defendant’s plant.

In Reynolds Metals Co. v. Lampert (9th Cir. 1963), 324 F.2d 465, a case involving a factual situation similar to the case at bar, the neighbors of an aluminum-production plant sought actual and punitive damages on the ground that fluorides emitted from the plant had damaged vegetation on their property. The district court refused to allow an expert witness to testify to the extent to which the fluoride emissions could have been controlled by the use of an electrostatic precipitator, on the ground that the witness had no background in the use of electrostatic precipitators in the aluminum industry. The witness was a chemical engineer who for 36 years had been chief chemist and chemical engineer for a municipal gas company which installed electrostatic precipitators. The reviewing court held the trial court abused its discretion in excluding the testimony since the witness was qualified in the general field. The court said:

“His lack of experience with electrostatic precipitators in the aluminum industry was a matter to be considered by the jury in determining his credibility and the weight to be given his testimony.” (324 F.2d at 467.)

Likewise in the present case, the fact that plaintiff’s expert witnesses had never designed, installed, or operated a plant which manufactures sodium hypochlorite could affect the weight to be given their testimony, but certainly should not affect its admissibility. In view of the dangerous nature of the plant operations of the defendant, and for the protection of the general public, we believe it was the duty of the trial court to make certain that the plant contained every possible safety factor. For that reason, the testimony of plaintiff’s qualified expert witnesses should not have been excluded.

The plaintiff also contends the court findings on the issues of permanent injunction and penalties denied the plaintiff due process of law. We believe the question of whether a penalty should be assessed is properly a matter left to the discretion of the trial court. Inasmuch as we deem it necessary to reverse and remand this cause for a new trial, the question of a penalty, if any, should be considered after hearing all of the evidence.

There seems to be a great deal of confusion on both sides in this cause as to whether the hearing which commenced on August 10, 1973, was for the issuance of a temporary or a permanent injunction. We believe the question of temporary or permanent relief can be clarified and resolved at a new trial.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded for a new trial.

BURMAN and JOHNSON, JJ., concur.


author: Mr. PRESIDING JUSTICE HAYES

text:
    John Kossifos, Plaintiff, v. The Louden Machinery Company, Defendant—(The Louden Machinery Company, Counterplaintiff-Appellant, v. John Morrell & Company, Counterdefendant-Appellee.)
    (No. 56647;
    First District (2nd Division)
    February 13, 1974.

      Rehearing denied September 27, 1974.

      Kralovec, Sweeney, Marquard & Doyle, of Chicago (Henry J. Marquard and Edward V. Scoby, of counsel), for appellant.

      Mayer, Brown & Platt, of Chicago (Patrick W. O’Brien and John D. Donlevy, of counsel), for appellee.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

I.

This appeal arises from a lower court order sustaining intervening plaintiffs motion to dismiss defendant’s counterclaim seeking indemnification from intervening plaintiff

Plaintiff, John Kossifos (hereafter Kossifos), filed an amended complaint against the Louden Machinery Company, defendant and counter-claimant (hereafter Louden), alleging that he was an employee of tire John Morrell Company, intervening plaintiff and counterdefendant (hereafter Morrell), and that, as a direct and proximate result of certain enumerated unreasonably dangerous conditions in certain equipment sold by Louden to Morrell, he suffered severe and permanent injuries. Specifically, Kossifos stated:

“That at the time and place aforesaid, the said equipment, * * * designed, manufactured, distributed and sold by the defendant to the plaintiffs employer, was at the time of its manufacture and at the time it left the possession or control of the defendant herein, unreasonably dangerous, by reason of one or more of the following defects or conditions of the said equipment:
(a) The said equipment was too heavy to be supported by the overhead suspension system;
(b) The said equipment was improperly designed, so as to support the racks and the traveling cage;
(c) The said equipment was not metalurgically [sic] sound, to support the traveling cage;
(d) The said equipment was improperly designed, so as to prevent the traveling cage from sliding off the rail;
(e) The said equipment was improperly designed in that it had no stops’ so as to prevent the traveling cage from sliding off the rail;
(f) The said equipment was improperly designed, in that the splices’ were not strong enough to support the traveling cage;
(g) The said splices’ were metalurgically [sic] unsound, in order to support the traveling cage;
(h) The said equipment was manufactured, distributed, and sold, without the defendant promulgating proper safety instructions for its use.”

Morrell then intervened in the suit as a party plaintiff in order to protect its Workmens Compensation lien.

Louden filed a counterclaim against Morrell seeking indemnity on the following basis:

“That any alleged negligence asserted against Louden arising out of the providing of component parts of the Monorail System to Morrell, and such negligence being again specifically denied by Louden, would be purely passive in nature whereas the installing of the Monorail System and the misuse of the Splice by Morrell contrary to good engineering practices and the specific instructions of Louden and the continuing nature of the allegedly unreasonably dangerous condition from 1957 until the Kossifos accident of August 20, 1985 would be active and affirmative in nature, and
That any alleged proximate cause of injury to Kossifos would be distant and remote from any manufacture or sale of the component part by Louden but the installation and maintenance by Morrell would be a near and close proximate cause of the injury of Kossifos.”

Pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 45), Morrell moved to dismiss the counterclaim, which motion was granted. Louden appeals from that order.

The sole issue presented to us on appeal, as conceded by Louden in its reply brief, is whether a manufacturer held strictly liable in tort may seek indemnity from a negligent intermediate third party.

Specifically, Louden contends that a manufacturer held strictly liable in tort for a plaintiffs injury should, in fairness, be able to seek indemnity from an intermediate third party whose negligent action, subsequent to the manufacturers loss of control over the product, was the primary and more proximate cause of the injury, in a case where the plaintiffs rights and potential recovery are not affected.

Morrell, on the other hand, contends that the concept of strict liability, under Illinois law and the policy behind that law, precludes such indemnity. We agree. See Burke v. Sky Climber, Inc. (1973), 13 Ill.App.3d 498, 301 N.E.2d 41.

Kossifos’ amended complaint against Louden sounds in strict liability in tort. Louden’s counterclaim against Morrell sounds in negligence. To impose strict liability on a manufacturer, a plaintiff “must prove that * * « [his] injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” (Emphasis ours.) (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182.) In a cause of action based on ordinary negligence a plaintiff must show that a defendant owed the non-negligent plaintiff a duty of reasonable care and then either failed to do something which a reasonable careful person would have done, or did something which a reasonably careful person would not have done under circumstances identical to those in a given case. (Emphasis ours.) (Haymes v. Catholic Bishop of Chicago (1968), 41 Ill.2d 336, 339, 243 N.E.2d 203.) It is obvious that the basis of strict liability in tort is the condition of a product whereas the basis of negligence is the conduct of a person.

This distinction is manifest in the instant case. Kossifos’ complaint against Louden seeks to impose liability on the ground that certain equipment was, at the time of its manufacture and at the time it left Louden’s control, in an unreasonably dangerous condition. Louden, on the other hand, seeks to impose liability in its counterclaim against Morrell on the basis of Morrell’s faulty installation, maintenance, and misuse of the same equipment.

Clearly these are two fundamentally different types of torts. They are separate and distinct causes of action and the pleading and proof requirements for each are different. (Mieher v. Brown (1972), 3 Ill.App.3d 802, 278 N.E.2d 869.) In a strict liability situation, the conduct, as such, of the defendant-manufacturer is not in issue. (Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill.2d 443, 266 N.E.2d 897.) In a negligence situation, the focus is not on the unreasonably dangerous condition of a product or instrument, but rather on the conduct of the defendant.

Confusion is ever-present, of course, because of the fact that the condition of a product will always have been ultimately caused by the conduct, whether by commission or omission, of someone. But this interrelationship between the condition of the product and the conduct of the person must not be permitted to blur the basic distinction between the type of tort being alleged. Where the product is in an unreasonably defective condition, the conduct of the person who caused it to be in that condition may or may not have been negligent; whether that conduct was or was not negligent is irrelevant to strict product liability, because the liability is predicated solely on the condition of the product.

As a matter of public policy, Illinois still refuses to permit contribution between joint tortfeasors. But some exceptions exist to that policy on theories of indemnity. One such exception is the “active-passive negligence” theory of indemnity (as set forth, for example, in Campbell v. Joslyn Manufacturing & Supply Co. (1965), 65 Ill.App.2d 344, 212 N.E.2d 512), whereby one jointly negligent tortfeasor whose negligence is passive or secondary may seek indemnity from the other jointly negligent tortfeasor whose negligence is the primary and active cause of a plaintiffs injury. In the instant case Louden seeks to use that exception against Morrell. But the exception applies only where the two tortfeasors are tortfeasors owing to their respective negligences, because the theory essentially involves a comparing of negligences to determine the more causative fault of the same type. Here, however, Loudens potential liability is not based on negligence, and the theory is therefore inapplicable. The theory of “active-passive negligence” is not applicable to compare apples with oranges. See Suvada v. White Motor Co., supra, at page 624; and Mr. Justice Davis’ concurring opinion in Wessel v. Carmi Elks Home, Inc. (1973), 54 Ill.2d 127, 295 N.E.2d 718.

II.

We are aware, however, that, despite the inapplicability of the theory of “active-passive negligence”, Louden is indeed asking us to compare apples with oranges and to create another exception to the policy against contribution between joint tortfeasors by holding that the tort of strict liability is a less culpable fault than the tort of ordinary negligence in terms of degree of social fault. Such an assessment, of course, must be made in the light of public policy, and the difficulty is that the assessment has already been made adversely to Loudens position. In Suvada v. White Motor Co., supra, the Illinois Supreme Court allowed indemnity against the strictly liable manufacturer of a brake system in favor of the negligent operator of a bus. The court stated its policy at page 619:

“Without extended discussion, it seems obvious that public interest in human life and health, the invitations and solicitations to purchase the product and the justice of imposing the loss on the one creating the risk and reaping the profit are present and as compelling in cases involving motor vehicles and other products, where the defective condition makes them unreasonably dangerous to the user, as they are in food cases.”

Commenting on this policy, the court in Texaco, Inc. v. McGrew Lumber Co. (1969), 117 Ill.App.2d 351, 254 N.E.2d 584, at page 358 said: “This statement manifests a strong public policy that insists upon the distribution of the economic burden in the most socially desirable manner, even to the extent of ignoring the indemnitee’s fault.” (Emphasis ours.) See also Wessell v. Carmi Elks Home, Inc., supra.

In Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305, the court held that a greater degree of culpability than ordinary negligence on plaintiff’s part was necessary in order to preclude recovery from a manufacturer strictly liable in tort. In holding that contributory negligence was not a bar to recovery in a strict product-liability action against a manufacturer, the court, in effect, designated strict product liability as a more serious tort than the tort of ordinary negligence. See also Meador v. City of Salem (1972), 51 Ill.2d 572, 284 N.E.2d 266.

HI.

We note that Louden in its counterclaim for indemnity against Morrell, sought indemnification on tire basis, inter alia, that Morrell’s “misuse” of the splice was the primary cause of Kossifos’ injuries.

“Misuse” (as narrowly defined) of a product by a plaintiff may bar recovery on the basis of strict product liability. Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305; Vlahovich v. Betts Machine Co. (1970), 45 Ill.2d 506, 260 N.E.2d 230.

In view of the availability of the “misuse by plaintiff” defense to strict product liability, one held strictly liable might conceivably attempt to assert “misuse” by an intermediate third party as a basis for indemnity against that third party.

In this case, however, we decline to reach that issue, because the issue cannot be regarded as having been raised by the mere employment of the noun “misuse” in a counterclaim clearly designed solely to invoke the indemnity doctrine of “active-passive negligence”. Nor has the counterclaimant included such issue among the points and authorities in its brief.

We hold, therefore, that Loudens counterclaim against Morrell, based on the “active-passive negligence” theory of indemnity, was properly dismissed because that theory of indemnity is not available to one held to strict product liability. Conceptually, strict product liability is not a form of ordinary negligence; and policy-wise, the tort of strict product liability has been held to be a more serious tort than the tort of ordinary negligence. For these reasons, we affirm the trial court’s dismissal of the counterclaim.

Affirmed.

STAMOS and DOWNING, JJ., concur.

       We recognize that this exception does not literally result in a contribution, but rather shifts the entire burden frpm one to the other.