text:
    Dawe's Laboratories, N. V., Plaintiff-Appellee, v. Commercial Insurance Company of Newark, New Jersey, Defendant-Appellant.
    (No. 58635;
    First District (1st Division)
    May 20, 1974.

      Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellant.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (John M. Moelmann, D. Kendall Griffith, and Rudolph G. Schade, of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal brings before us for review a summary judgment entered in favor of Dawe’s Laboratories, N. V., a Belgian corporation (plaintiff) against Commercial Insurance Company of Newark, New Jersey, a corporation, (defendant). Defendant has appealed from this judgment. A general preliminary description of the proceedings is helpful.

Plaintiff obtained a general liability policy of insurance from defendant which included products liability. Plaintiff produces premixes of vitamins and various nutrients which are incorporated into poultry and livestock feed. The case involves one of plaintiff’s plants operating in Belgium. A quantity of a certain premix was sold by plaintiff from its Belgian plant to a customer (Morgenstond) in the same country engaged in selling poultry feed. Negotiation commenced between plaintiff and Morgenstond regarding alleged deleterious effects upon poultry from premix sold by plaintiff. Defendant was given notice of the claim but denied coverage.

On April 27, 1970, a written agreement was entered into between plaintiff and defendant. The agreement recited that plaintiff had made a claim under the policy which had caused a dispute between die parties. They agreed that defendant would investigate, compromise and settle the claim and defend any action that might be brought by Morgenstond against plaintiff. Plaintiff agreed to be bound by any settlement effected by defendant and immediately to pay two-thirds “of any settlement and all expenses and costs.” Defendant agreed to pay the remaining one-third upon the payment being made by plaintiff. The parties agreed to cooperate each with the other, all without prejudice to or waiver of any of their respective rights.

In due course, a settlement of $89,000 was negotiated. Each of the parties paid his agreed share. Plaintiff then filed the within action for declaratory judgment seeking a declaration that the policy covered the liability (Ill. Rev. Stat. 1973, ch. 110, par. 57.1); judgment that defendant reimburse plaintiff for that portion of the settlement and expenses paid by plaintiff and allowance of statutory attorney’s fees (Ill. Rev. Stat. 1971, ch. 73, par. 767.) Plaintiff’s motion for summary judgment (Ill. Rev. Stat. 1971, ch. 110, par. 57) was supported by the affidavits of Norbert Wuytack, a clerk in the employ of plaintiff and Jean (or John) Dreiss, former director of technical services for plaintiff and now its European director of marketing.

Defendant filed a response to plaintiffs motion for summary judgment. It set forth that its answer had alleged that it lacked knowledge of certain facts, which indicated that the facts were not undisputed; credibility of witnesses was involved and possible defenses were peculiarly within the knowledge of the plaintiff; the affidavits contained matter inadmissible in evidence; even if the facts were undisputed, it could not be inferred that the issue was one of law; affiants were subject to change of mind or impeachment, particularly where the facts were peculiarly within the knowledge of their employer; and the right to summary judgment was not free from doubt.

Defendant also moved to strike both of the affidavits on the grounds that they contained hearsay; were based upon unauthenticated documents and were replete with conclusions and self-serving statements. Plaintiff filed a response to this motion to strike which set forth that the affidavits were properly authenticated; accompanying exhibits need not be separately authenticated; affiants would be competent to testify to the material set forth; and inadmissibility of certain statements would not invalidate the entire affidavits. Plaintiff also set forth that issues of fact raised by the defendant’s answer would not prevent summary judgment where the affidavits disclosed that there is no issue of fact.

Defendant filed counter-affidavits by Dr. Roland W. Winterfield and B. F. Biggs, Jr. Dr. Winterfield is a scientist with extensive qualifications and experience in agriculture and in the veterinary field. Mr. Biggs is an official of a large insurance company with 30 years of experience in the insurance industry. Defendant also took discovery and evidence depositions of a number of witnesses and filed excerpts from their testimony, authenticated by affidavits of counsel. These witnesses included among others Jean (or John) Dreiss and Norbert Wuytack, employees of plaintiff who made affidavits in support of the motion for summary judgment.

Plaintiff made a motion to strike the affidavits of Dr. Roland Winter-field and B. F. Biggs, Jr. As regards the former, the motion set forth that the affidavit was irrelevant and immaterial, contained conclusions rather than facts and raised no issue of fact. The motion averred that the latter was based upon hypothetical facts not before the court and was patently improper because it was directed to the ultimate issue in the case, the legal question of coverage under the policy.

Defendant filed a response to the motion to strike comprising some six pages and containing argument on the merits of the motion, including citation of legal authorities. After full hearing, the trial court granted the motion for summary judgment. Defendant was directed to afford coverage of the claim under the policy and to pay plaintiff the portion of the settlement it had paid to Morgenstond with interest. Defendant was also ordered to reimburse plaintiff for expenses incurred by plaintiff in handling the claim and negotiation of the settlement and to reimburse plaintiff for expenses incurred in the preparation and prosecution of the within action with these amounts to be reserved for further determination by the court. The order also sustained the motion of plaintiff to strike the affidavits of Winterfield and Biggs and the motion of defendant to strike the affidavits of plaintiff was denied.

In this court, defendant urges that the court erred in striking tire counter-affidavits of Winterfield and Biggs and in entering summary judgment because there were conflicts and issues of fact and questions of credibility of witnesses which required trial. In response, plaintiff urges that whether a liability insurance policy provides coverage is determined by the claim of the injured party; summary judgment is proper when there is no genuine issue concerning any material fact; the policy of insurance does not exclude production mistakes, mistakes in formulas not prepared by plaintiff and active malfunctions of a product; the Morgenstond claim arose out of a production error during filling of a formula prepared by Morgenstond; defendant cannot deny coverage on the theory that the Morgenstond claim is groundless; and the trial court properly struck the Winterfield and Biggs affidavits.

The insurance policy issued by defendant contains a number of exclusions to which the coverage “does not apply.” Since the difference of opinion between these parties is concerned with one of these exclusions, we will state it in full:

“This insurance does not apply: * * *
(e) to bodily injury or property damage resulting from the failure of the named insured’s products or work completed by or for the named insured to perform the function or serve the purpose intended by the name insured, if such failure is due to a mistake or deficiency in any design, formula, plan, specifications, advertising material or printed instructions prepared or developed by any insured; but this exclusion does not apply to bodily injury or property damage resulting from the active malfunctioning of such products or work; * * *.”

The plaintiff’s motion for summary judgment set forth that a claim was made against plaintiff by its customer Morgenstond because of the failure of plaintiff to add sufficient vitamin D3 in the filling of two orders for approximately 12 tons of nutrient and vitamin additives purchased by Morgenstond in July of 1969. It averred that a mistake was made by Norbert Wuytack, its employee, in filling an order given pursuant to certain formulas “which had previously been formulated.” It set out that the only defense alleged by defendant is that contained in exclusion (e) of the policy. Defendant contends that there was a mistake or deficiency in a formula whereas plaintiff contends that the claim resulted not from a mistake or deficiency in a formula but from a mistake by plaintiff” s clerk in filling an order according to a formula previously developed without error.

Before summarizing the affidavits in support of the motion for summary judgment, we should state certain important definitions. As used in this litigation, the word “premix” is a technical term which refers to an assembly or combination of vitamins, minerals and additives. “Additives” is also a technical term which, as used here, includes antibiotics, antioxidents and coccidiostats. The term “coccidia” is used in scientific circles to describe small scaly insects. Their presence in the digestive tracts of chickens causes abnormal symptoms, referred to as coccidiosis, and sometimes death. The terms “coyden” and “amprolium” describe chemicals generally used as additives to the premix to prevent this condition. They are sometimes described as “coccidiostats.” These substances were frequently substituted for each other as constant, unvarying use would cause either one to lose its effectiveness. The various substances or additives, together with vitamins and nutrients, thus composed the premix. The premix in turn was combined with fodder of various types to form the finished chicken feed.

The affidavit of Norbert Wuytack set forth that he was a clerk in plaintiffs production department. Morgenstond had prepared its own formula for a premix for broiler feed and had submitted these specifications to plaintiff. Engineers from plaintiff’s technical services department had reduced the formula to writing and it had been registered with the Belgian Ministry of Agriculture. Plaintiff had maintained a master formula sheet reflecting these specifications. Morgenstond requested changes in this formula from time to time.

The affidavit further stated that, on April 2, 1968, one of the formulations thus requested by Morgenstond was registered by plaintiff with the Ministry of Agriculture of Belgium under Code No. 5051. Wuytack then prepared a so-called standard dump sheet which would translate the master formula for the premix into weights and measures of products to be mixed by the production department. A sample of the master formula appended to the affidavits shows quantities of the ingredients for the premix in grams, milligrams and number of units of vitamins sufficient to comprise one kilogram. It also reflects the amount of amprolium necessary to make this 1 kilogram of the premix. All of the ingredients are identified by code numbers. The affidavit set forth that the affiant prepared the standard dump sheet for this formula on February 10, 1969. The accuracy of this document was verified by the technical services department of plaintiff.

Shortly thereafter Morgenstond decided that it would change the coccidiostat in the formula and would use coyden instead of amprolium. Accordingly, a new master formula sheet was prepared reflecting this change and was registered in Belgium under Code No. 5009. The affiant prepared another standard dump sheet for this new formula which was also verified by plaintiff’s technical staff. As orders were received, new dump sheets or production sheets were prepared which reflected the amounts of the various ingredients to be used in filling the formula for the quantity of premix contained in orders placed by Morgenstond. These sheets are referred to as production sheets to avoid confusion. These production sheets were used by a manufacturing crew who dumped the specified ingredients into a mixer. The completed additive would then be packaged and shipped to the customer. These various production sheets were prepared by Norbert Wuytack, but, since they involved simply a matter of arithmetical calculation of quantities to make the amount of premix required by the specific order, the production sheets were never submitted to the technical staff.

The affiant also stated that in June of 1969, plaintiff received an order for 12 tons of the premix. The affiant prepared a production sheet reflecting the quantities of each substance to fill this order. He found that the standard dump sheet required a substance referred to as vitamin AD3 which was a combination of vitamins A and D3. This particular substance was not in stock. Accordingly, the witness substituted vitamin A (No. 7000 under plaintiff’s code) for vitamin AD3 (Code No. 7010). The affiant stated that he forgot that by so doing the amount of vitamin D3 (referred to as Code No. 7020) had been decreased. Affiant did not submit this new production sheet to the technical staff since, as above shown, its preparation was entirely a matter of simple calculation. Accordingly, the 12 tons of additive when fabricated and sent to Morgenstond did not comply with the master formula because they contained an insufficient quantity of vitamin D3.

The remaining affidavit in support of plaintiff’s motion was made by Jean (or John) Dreiss. It showed that plaintiff produced premixes of vitamins and nutrients for fortification of feed for poultry and livestock. A customer would fix the formula desired and would specify the quantities of units and grams of each vitamin and nutrient required in the formula. Plaintiff would then prepare a master formula which would be registered with the Belgian Ministry of Agriculture. This master formula plight be modified from time to time by the customer. Plaintiff also would prepare a standard dump sheet reflecting this formula for use in filling orders. In addition, a clerk would prepare a dump sheet, or production sheet, for each production of subsequent orders. This would be prepared from the standard dump sheet as a guide. The clerk might substitute ingredients such as vitamins, always making sure that the amount of the vitamin would be that required by the master formula.

Commencing in 1968, Morgenstond specified a formula for broiler feed to plaintiff. The engineers of plaintiffs technical services department placed this formula in technical form and had it registered with the Belgian Ministry. A standard dump sheet was prepared by Wuytack and verified by plaintiff’s engineers. This preparation was a clerical function which would translate the master formula into weights and measures for the use of the production department.

In February of 1969, Morgenstond modified this formula by changing the coccidiostat to coyden. A new master formula was registered and another standard dump sheet was prepared and verified by the engineers. In June of 1969, plaintiff received an order for 12 tons of this premix from Morgenstond. The clerk who prepared the production sheets was Norbert Wuytack. His task was to make substitutions in nutrients and vitamins, if necessary, because of depletion of stock, without varying the relative quantities thereof as required by the master formula. Furthermore, in preparation of the production sheet, the standard dump sheet, reflecting the 1000 kilogram quantity, had to be arithmetically converted into the 12 ton quantity specified in the order. These were clerical tasks, completely unrelated to the basic formula of the premix, and which, therefore, were not checked by managerial personnel or by any engineer.

In August of 1969, Morgenstond complained that broilers to which the premix was fed had developed rickets. They thought this was due to lack of vitamin D3. Dreiss investigated and found that a clerical mistake had been made, as set forth in the affidavit of Wuytack, which reduced the amount of vitamin D3 required by the master formula. He examined the master formulas and standard dump sheets and found them to be correct. The mistake had been made in preparation of the production sheet. Affiant stated that Wuytack had nothing to do with preparation of a formula plan or specifications. This was done by Morgenstond and the formulas were reduced to writing by plaintiff’s engineers, for filing with the Ministry of Agriculture. There was no error in preparing the formula plan or specifications; the mistake was made in filling the customer’s order.

The counter-affidavits filed by defendant fall into two groups. The first, which we will now consider, consisted of verified excerpts from depositions of various witnesses taken by counsel for defendant. The second category, which will be considered later, consisted of the affidavits of Winterfield and Biggs.

The deposition of Joseph Arnold Vanvaerenberg shows that he was a nutritionist and chemical engineer in charge of the laboratory of Morgenstond. He composed formulas for animal food. His deposition set forth the purpose of coyden and amprolium as above elucidated. He pointed out that his company used several suppliers for chicken feed as distinguished from premixes or vitamin concentrates. These latter materials, which contain vitamins, minerals, antibiotics and coccidiostats to suppress coccidia, came only from plaintiff. A differentiation must be made between the formulatons of chicken feed and premixes. All of the additives mixed together and constituting the premix form only 1% of the quantity of the chicken feed or fodder. These items are intermingled and fed to the chickens together. Plaintiff sells, and sold to Morgenstond, only the premix and none of the remaining ingredients.

Excerpts from the deposition of Jean (or John) Dreiss serve to verify the matters contained in his affidavit. This witness referred to an additive as one single ingredient, while a premix was defined as an assembly of various additives and vitamins. In its business, plaintiff sold only premixes to Morgenstond and its other customers. Plaintiff would sometimes formulate chicken feed or fodder and furnish this information to the customer to assist the latter in obtaining the necessary calories and efficiency at the lowest cost. However, the ingredients in premixes were always specified to plaintiff by Morgenstond. No other part of the chicken feed was sold by plaintiff. In the particular case here involved, the same procedure was followed and premix specifications expressed in terms of units per kilogram of premix were prepared by Morgenstond and sent to plaintiff. The master formula was written out by plaintiff and registered with the Belgian authorities. A clerk would prepare a standard dump sheet as above described. In addition, whenever an order was received the clerk would prepare a production dump sheet to be used by the workers in the plant in preparing the premix. When the customers modified the master formula, such as by a modification of the coccidiostat, a new registration with the Belgian authorities was required. The production dump sheet prepared by the clerk was not checked by the technical staff, although the standard dump sheet always was.

The excerpts from the deposition of Norbert Wuytack also corroborated in effect the material contained in his affidavit. He also stated that he had never attended college; had no courses in chemistry or vitaminology and had no education or training in calculating formulas or in preparing any kind of formula. The production dump sheets prepared by him were not approved or checked by any other person employed by plaintiff. It should also be noted that the discovery deposition of Theo. Dubois, employed by plaintiff’s technical sendees department, described the formulas bearing Code Nos. 5009 and 5051 (using coyden and amprolium respectively) as “D. C. M. items.” These initials stand for Dawes Custom Mix which in turn refers to a product in which “the formula is imposed by the customer.” The witness also testified that these formulas were made up by Morgenstond and then submitted to plaintiff so that plaintiff had “nothing to do with” the “formulating” or “checking out” of these formulas.

The basic principles of summary judgment procedure have been so frequently described that they need no further elucidation here. It suffices to note that summary judgment is proper where there is no genuine issue as to any material fact; we must strictly construe affidavits in support of the motion and counter-affidavits should receive liberal construction. (See Fooden v. Board of Governors, 48 Ill.2d 580, 587, 272 N.E.2d 497, and cases there cited.) See also Watson v. Southwest Messenger Press, 12 Ill.App.3d 968, 972,. 299 N.E.2d 409, and cases there cited.

In considering the language of the policy of insurance, as above quoted, our primary objective must be to ascertain and to give effect to the intention of the parties as therein expressed. Where there is no ambiguity in the policy provision, the intent of the parties “must be determined solely from the language used.” (Schek v. Chicago Transit Authority, 42 Ill.2d 362, 364, 247 N.E.2d 886.) In this regard, insurance policies must be treated like any other contract and “[w]here the language in a policy is clear and unambiguous, it must be taken in its plain, ordinary and popular sense.” (Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill.App.3d 115, 121, 294 N.E.2d 7.) “The issue of whether an ambiguity exists in a contract is a question of law.” Gaffney v. Burns Detective Agency, 12 Ill.App.3d 476, 480, 299 N.E.2d 540 and cases there cited.

Applying these principles to the language of the policy exclusion before us, we conclude, as a matter of law, that the language in this exclusion is clear and unambiguous. In the context of the facts shown here, it may be read and understood by giving all of the language its plain and ordinary meaning. Situations in which bodily injury or property damage result from a mistake or deficiency in any formula prepared by plaintiff are excluded from coverage (subject only to the exception in the final language of the above policy excerpts pertaining to “active malfunctioning” which we need not consider).

According to the clear and unmistakable language of exclusion (e), two concurrent factors must be present to prevent coverage: the formula must have been prepared or developed by the plaintiff and tire failure must have been due to a mistake or deficiency in the formula itself. The language of the exclusion points up and emphasizes the basic difference between formulation and production of the premix. Only the former is eliminated from coverage by the exclusion.

The affidavits in support of plaintiff’s motion for summary judgment show that the formula for the premix assembled and sold by plaintiff was prepared and developed not by plaintiff but by Morgenstond, the customer. Plaintiff’s activity in connection with the formula itself consisted solely in writing out, or formalizing, the master formula as requested by the customer and sending it to the Belgian government for registration. The formula was not prepared or developed by plaintiff. In addition, no mistake was made in connection with the formula as such. The affidavits presented by plaintiff show clearly that a mistake was made by clerical help in producing the premix. These facts are not contradicted or disputed in any manner by the counter-affidavits submitted by defendant. After consideration and review of fire affidavits presented by both sides, it follows that plaintiff has established that there is no dispute in any material issue of fact between these parties. Morgenstond’s claim against plaintiff was clearly within policy coverage.

We should also point out here that even if the language in the exclusion above analyzed was “susceptible of two constructions, that construction will be adopted which is more favorable to the insured.” (Home & Automobile Insurance Co. v. Scharli, 10 Ill.App.3d 133, 136, 293 N.E.2d 914.) This principle is most rigorously applied in considering the meaning of exclusions incorporated into a policy of insurance. Expressions used by an insurer in attempting “to limit its liability will be construed most strongly against the insurer and liberally in favor of the insured.” (Bell v. Continental Assurance Co., 123 Ill.App.2d 274, 278, 260 N.E.2d 114.) An interpretation of the above exclusion to eliminate the liability of the insurer in the case at bar and to exclude production and manufacturing mistakes would virtually emasculate insurance protection against product liability. On the basis of all of the material above considered, plaintiff’s right to summary judgment seems clear and certain.

It remains now to consider the two counter-affidavits stricken by the trial court. The affidavit of Dr. Roland W. Winterfield, a highly qualified expert, expressed the opinion, based upon a reasonable degree of scientific certainty, that an absence or deficiency of vitamin D3 in the diet of chickens would not cause rickets but would at best fail to prevent the disease where the calcium or phosphorous levels of nutrition were adequate or in proper balance. We need not consider the correctness of this scientific opinion. An affidavit or information of this type might have had materiality in a situation in which defendant as the insurer would be defending plaintiff against a suit brought by Morgenstond. The opinion of the expert goes to the merits of the claim of Morgenstond against plaintiff. It has no materiality to the issue of policy coverage which is before us. The policy of insurance here provided that it was defendant’s duty to extend coverage and “to defend any suit against the insured seeking damages * * * even if any of the allegations of the suit are groundless, false or fraudulent * * *." Defendant would thus be obliged to defend plaintiff if suit had been filed by Morgenstond which would have “brought the case within or potentially within the coverage of its insurance contract.” (Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill.App.3d 115, 121, 122, 294 N.E.2d 7.) These portions of the Winterfield affidavit thus do not raise any material issue of fact.

In his affidavit, this expert also answered a lengthy hypothetical question based generally upon the facts appearing from the affidavits in support of plaintiffs motion for summary judgment. He expressed an opinion “based upon a reasonable degree of scientific certainty” that the result of the substitution of vitamin A for vitamin, AD3 by the clerk in preparing the production sheet was actually a substitution of one substance for another and did not constitute a substitution of chemical or biological equivalents so that “the end result or product is a new formulation or reformulation which so violates the original formula as to supersede it.” In other words, the expert took the position that the clerk who prepared the production sheet by his error created a completely new formula for preparation of the premix.

Under the circumstances disclosed in the case at bar, the application of the policy exclusion to the undisputed facts before us is a question of law. It is the duty of the court and of no one else to determine whether the error made by the clerk is a mistake in formulation under the provisions of the policy exclusion or whether it is a mistake in production or manufacture. The meaning of the language used in the policy exclusion, in tire frame of reference to the undisputed facts established in this record, is a matter of law for decision by the court. (Cohen v. Northwestern National Life Insurance Co., 124 Ill.App.2d 15, 18, 259 N.E.2d 865). Expert opinion on a problem of this type is inadmissible and patently unacceptable. See National Fire Insurance Co. v. Hanberg, 215 Ill. 378, 382, 74 N.E. 377.

The same criticism is properly leveled against the affidavit of B. F. Biggs, Jr. This document is simply an attempt to interpret the policy exclusion which is a matter solely within the province of courts and judges. In addition, as plaintiff properly urges, the opinion expressed in his affidavit is predicated upon the assumption that plaintiff prepared the premix formula. As shown, this assumption is directly contrary to the uncontradicted affidavits before us. The Biggs affidavit also states the same opinion as the Winterfield affidavit regarding creation of a new formulation by the mistake of plaintiff’s clerk. This affiant was by no means qualified as an expert to express such an opinion even if it would be legally permissible. (Gibson v. Healey Brothers & Co., 109 Ill. App.2d 342, 352, 353, 248 N.E.2d 771.) We conclude that the trial court was correct in striking both the Winterfield and Biggs affidavits.

Since we have concluded that the claim made against plaintiff was not excluded from coverage under exclusion (e) above set forth, we need not consider the applicability of the expressed exception thereto regarding “active malfunctioning” of the product.

Full consideration and careful thought concerning all of the affidavits and counter-affidavits as well as the entire record before us lead to the conclusion that the judgment order appealed from is proper in all respects and that it should be affirmed.

Judgment affirmed.

EGAN, P. J., and HALLETT, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURMAN

license: Public Domain

text:
    American National Bank and Trust Company of Chicago, PlaintiffAppellee, v. John Colby a/k/a Seaman Avery, et al., Defendants—(Norma Brown, Defendant-Appellant.)
    (No. 58551;
    First District (4th Division)
    May 22, 1974.

      John Elson, of Chicago, for appellant.
    Arnstein & Levin, of Chicago (Harry G. Fins, of counsel), for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

In this appeal Norma Brown seeks reversal of an order of the trial court denying her motion to vacate a judgment entered by confession, quash a garnishment proceeding instituted upon the judgment and return certain funds garnished previously. On October 9, 1968, Norma Brown, John Colby and Carrie Patton signed a promissory note obligating them to pay $4005 in 60 monthly installments to the Star Lumber Company. The note was assigned to the plaintiff, American National Bank and Trust Company of Chicago, and contained the following cognovit clause:

“* * * [upon the occurrence of certain specified conditions] all unpaid installments, plus accrued interest, late charges and attorney’s fees, if any, shall immediately become due at the option of the holder, without notice, and the undersigned and each of them hereby authorize irrevocably any attorney of any Court of Record to appear for the undersigned and each of them in such Court, in term time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this note, for all unpaid installments, plus accrued interest, late charges and attorney’s fees, if any, together with interest thereon at highest lawful rate, and costs, and 15% of unpaid installments as attorney’s fees for collection, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, and waive the prosecution of a writ of error or appeal upon such judgment, hereby ratifying and confirming all that said attorney may,do by virtue hereof.”

On December 14, 1970, the plaintiff filed a complaint for judgment by confession in the Circuit Court of Cook County, in which it alleged that there was due from the defendants, Norma Brown, John Colby and Carrie Patton, the principal sum of $2756.76 plus late charges of $48.16 and attorney’s fees of $222.75. The court entered judgment against the defendants in the sum of $3027.67 on December 21, 1970. A writ of execution was issued, but was returned not found. On May 5, 1971, a citation to discover assets was issued which required Norma Brown to appear on June 8, 1971. The record does not reveal whether she ever appeared; however she stated in the affidavit filed in support of the motion to vacate that she first became aware that there was a judgment against her when she was served with the citation.

On June 16, 1972, the plaintiff instituted a garnishment proceeding against tire Seaway National Bank of Chicago. It indicated in its affidavit that $200 had been paid on the judgment, although the record does not indicate how or by whom it was paid. Seaway responded that it was indebted to the defendants in the sum of $37.47 due to a bank account and was ordered to turn this sum over to the plaintiff. On July 24, 1972, Norma Brown was served with a second citation to discover assets, and on August 3, 1972, a second garnishment was directed to a representative of the Seaway Bank. As a result of the second garnishment the bank was ordered to turn over an additional $236.32, also representing a bank account, to the plaintiff.

On October 11, 1972, Norma Brown moved to vacate the judgment, to vacate the garnishment against her bank account and for an order that the plaintiff return the funds already garnished and pay the service charges incurred by her as a result of the garnishment proceeding. She based this motion upon the grounds that entry of judgment without prior notice and subsequent garnishment of her bank account deprived her of her property without due process of law in violation of the fourteenth amendment to the United States Constitution and article 1, § 2 of the Illinois Constitution. In her affidavit she averred that (1) confession of judgment was entered against her on December 21, 1970, (2) she was given no prior notice of the confession of judgment, (3) she first learned of the entry of judgment against her when she received a citation to discover assets issued May 5, 1971, (4) she was unaware of the confession clause in the retail installment contract with Star Lumber and did not understand its meaning as she was unskilled in legal matters and had not graduated from high school, (5) that she lacked bargaining power to negotiate about the confession clause and received no separate consideration for it, and (6) she did not voluntarily, intentionally, knowingly or understanding^ consent to the entry of judgment and garnishment of her bank account and did not knowingly waive her right to a proper notice and hearing. The court denied her motion, stating specifically that it was not passing upon the constitutional issue, and the present appeal followed.

On appeal the defendant contends that she was denied due process of law because the confession judgment was entered and enforced without any prior determination of whether she had voluntarily, knowingly or understandingly waived her constitutional rights to notice and a hearing. She further contends that the Illinois statute allowing the entry of judgments by confession (Ill. Rev. Stat. 1973, ch. 110, par. 50(3)) is unconstitutional because it does not require such a determination prior to the entry of judgment. After reviewing the record, it is our conclusion that it will not be necessary for us to reach these matters.

The motion to vacate was brought pursuant to section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 72.) In applying section 72, our courts have held uniformly that, in order to succeed, the petitioner must demonstrate diligence in pursuing the relief sought. (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294.) Likewise, Supreme Court Rule 276 (Ill. Rev. Stat. 1973, ch. 110A, par. 276), which specifies the means for opening judgments entered by confession, requires that a defendant show that he has been diligent in moving to open the judgment.

In the present case the record establishes clearly that the judgment was entered on December 21, 1970. Norma Rrown first learned of it on May 5, 1971, but did not attempt to have it vacated until October 11, 1972, over 1 year and 5 months later. It does not appear that she was under any disability during this time or that she had any other reason for not acting promptly. Furthermore, she was served with a second citation to discover assets and her bank account was garnished twice, all of which should have impressed upon her the seriousness of the situation and the need for some affirmative action. From these facts the trial court would have been justified in finding, as it undoubtedly did, that she was not entitled to have the judgment vacated due to her gross lack of diligence in seeking relief. It would, therefore, have been possible for the court to rule upon the motion without touching any of the constitutional issues presented. In fact, the court stated specifically that it was not passing upon any constitutional issue in denying the motion. Since the trial court did not rule upon the constitutional issues we will not consider them. See People v. Fleming (1971), 50 Ill.2d 141, 277 N.E.2d 872; Crosby v. City of Chicago (1973), 11 Ill.App.3d 625, 298 N.E.2d 719.

A motion pursuant to section 72 is addressed to the sound discretion of the court. (Calvo v. Willson (1965), 59 Ill.App.2d 399, 207 N.E.2d 496.) As we have stated above, the record discloses an ample basis for the trial court’s decision, and thus it did not abuse its discretion in denying the motion. For these reasons the order of the Circuit Court of Cook County is affirmed.

Affirmed.

DIERINGER and JOHNSON, JJ., concur.


author: Mr. PRESIDING JUSTICE EGAN

text:
    Dorothy Foster, Adm’r of the Estate of Vercey Lee Foster, Deceased, Plaintiff-Appellant-Appellee, v. Englewood Hospital Association et al., Defendants-Appellants—(Evelyn P. Hausman et al., Defendants-Appellees.)
    (No. 57246;
    First District (1st Division)
    May 20, 1974.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (John M. Moelmann, D. Kendall Griffith, and Stanley J. Davidson, of counsel), for appellants.
    James T. Demos, of Chicago (William J. Harte and Philip Rock, of counsel), for plaintiff-appellant-appellee.

      Bernard E. Harrold and Kevin T. Martin, both of Wildman, Harrold, Allen & Dixon, of Chicago, for defendants-appellees.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Dorothy Foster, as administrator of the estate of Vercey Lee Foster, brought an action for wrongful death against the defendants, Englewood Hospital Association, Grace Meyer, a nurse, and Evelyn P. Hausman and Continental Illinois National Bank and Trust Company, co-executors of the estate of Dr. Charles Hausman, who died prior to suit. The plaintiff alleged that the negligent medical treatment by one or more of the defendants or Dr. Hausman was a proximate cause of death.

A jury returned a verdict in favor of the plaintiff against all defendants in the amount of $300,000. The court granted Hausmaris estate’s motion for judgment notwithstanding the verdict, but the post-trial motions of Grace Meyer and the Englewood Hospital Association were denied.

The plaintiff has appealed from the judgment notwithstanding the verdict in favor of Hausman’s estate, and the defendants Grace Meyer and the Englewood Hospital Association have appealed from the judgment in favor of the plaintiff. The plaintiff contends that the trial court erred in entering judgment notwithstanding the verdict in favor of Hausman’s estate because there was sufficient evidence demonstrating Dr. Hausman’s negligence.

The only error assigned by the defendants Meyer and Englewood Hospital is the denial of their motion for a new trial which was based on an evidentiary ruling.

On July 23, 1969, Vercey Lee Foster injured his shoulder while playing football in a park near his home. The following morning he was admitted to the emergency room at Englewood Hospital. The first physician to examine him was Dr. Francisco Hernandez, who conducted a complete physical examination which revealed a possible dislocation of the left shoulder. Thereafter, Dr. Hernandez called the attending surgeon of the day, Dr. Henry Pimentel, who ordered X-rays. Dr. Pimentel conducted an examination and arrived at a diagnosis of a shoulder separation. Both doctors determined that Foster was otherwise healthy and normal, and surgery was prescribed.

The defendant, Grace Meyer, is a qualified anesthetist, who first saw Foster in the operating room the following day. He was brought in on a cart and appeared to be a little apprehensive. She had worked with Dr. Hausman many times before.

She began an intravenous solution of sodium pentothal into Foster’s right arm at 10:25 A.M. The solution was mixed the previous Monday, but she did not know who mixed it. The dosage was given at one time, slowly, to observe the loss of lid reflex. The manufacturer of sodium pentothal recommends a test dosage, then a 60-second pause to observe tire affect on the patient. She did not wait 60 seconds to watch the reaction. She gave him a larger dose because he was apprehensive. She then replaced the pentothal with a solution of dextrose in water. After that the patient received another anesthetic — penthrane, nitrous oxide and oxygen. A muscle relaxant, anectine, was also administered, after which she opened his mouth and placed a tube into his trachea. The patient then received penthrane, nitrous oxide and oxygen through the tube from a machine. After this was done, Dr. Hausman draped the patient from head to toe, leaving an opening for the surgery. The operation began at 10:35 A.M. and was completed in 15 minutes. Dr. Lontok and Dr. Villafria assisted Dr. Hausman.

Before and during the operation Meyer recorded Foster’s blood pressure. It was as follows: at 10:20 — 150/80 with a pulse of 92; at 10:30— 120/50 with a pulse of 90; at 10:40 — 120/50 with a pulse of 88; at 10:50 —110/50 with a pulse of 88; at 11:00 — 100/50 pulse not recorded. Meyer first assisted the patient’s breathing when she started the anectine at 10:25 A.M. He was breathing spontaneously, but shallowly, during the course of the operation, and she was assisting him by hand manipulation of the bag on the anesthetic machine. At 11 A.M., he was not breathing, and she was assisting him by totally controlling his aspiration. At 11:05 A.M. the operation closed, the patient’s breathing was totally assisted, and Dr. Hausman left the operating room. From 11:05 to 11:10 Meyer continued controlling Foster’s respiration, giving him oxygen. She then asked another nurse if a Bennett resuscitating machine was available in the recovery room because the Bennett gives better respiration than the hand controlled bag.

At 11:10 A.M., Foster’s respiration was totally paralyzed. Meyer disconnected the anesthetic machine from the intubation tube. Foster was lifted from the operating table onto a cart. He still had the endotracheal tube in his mouth, and Meyer controlled his respirations with a high percentage of oxygen. She gave Foster an excess of the required amount of oxygen and then controlled and forced the respiration in order to build up a higher concentration of oxygen in the bloodstream. Meyer testified that this amount of oxygen would serve him for three minutes. The endotracheal tube was taken from Foster’s mouth, and he was wheeled to the recovery room about 50 to 75 feet down a straight corridor. It took a minute or less to wheel him there. During the trip Foster’s lungs were completely paralyzed, and he was not breathing.

Meyer connected the patient to the Bennett machine at which time his blood pressure was 80/50. This was the first time that she realized Foster was in serious difficulty. Foster’s pulse could not be detected at 11:10 A.M., and he had no pulse reported at 11:15 A.M. At 11:20 A.M. he had no respiration and no blood pressure, and various doctors were attempting resuscitative procedures. He was reported expired at 12:15 P.M.

Dr. James Eclcenhoff, a qualified anesthesiologist, in response to a hypothetical question, testified that the patient died from a lack of oxygen. He based his opinion on the fact that the patient needed continuous supportive respiration by controlled ventilation at aU times and he did not have assisted ventilation until late in the case. The coroner’s pathologist testified that his findings were compatible with death due to lack of oxygen.

The trial court granted the motion of Hausman on two grounds: “the general insufficiency of the evidence” and the inadmissibility of the widow’s testimony under the Evidence Act. Since we cannot tell what insufficiency the trial court was referring to, we will follow the battle-lines that have been drawn in this court by the parties themselves.

The first question to be resolved is the law applicable to liability, that is, what standard of conduct is to be imposed on a surgeon when the negligent act that directly caused the injury was committed by a person employed by the hospital?

In Graham v. St. Luke’s Hospital, 46 Ill.App.2d 147, 159, 196 N.E.2d 355, the complaint charged that a nurse negligently injected a hypodermic needle nine days after a successful operation. At the time, the defendant surgeon was not present. In upholding a directed verdict for the surgeon, the court said: “[I]t is clear that a physician is not liable for the negligence of a nurse or intern, who are employees of a hospital and not under his personal control or supervision.” (Emphasis added.) The following rule is stated in 12 A.L.R.3d 1017, 1021, and the Graham case has been cited in support of it:

“An operating surgeon may be held liable for the negligence of an assisting nurse who is in the general employ of a hospital not owned or controlled by the surgeon where the alleged acts of negligence are done while the nurse is under tibe direct control or supervision of the surgeon.”

This rule has been recognized in 20 other jurisdictions, in one of which the surgeon is compared to the captain of a ship. (McConnell v. Williams, 361 Pa. 355, 65 A.2d 243.) The basis for all the decisions upholding liability appears to be that the hospital employee becomes the “borrowed servant” of the surgeon. See Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589; Aderhold v. Bishop, 94 Okla. 203, 221 P. 752; McConnell v. Williams, 361 Pa. 355, 65 A.2d 243.

We are not persuaded of the fairness of a rule which would permit the invocation of the doctrine of respondeat superior for every act of negligence by an employee of the hospital simply because the employee came under the temporary supervision or control of the operating surgeon. As a practical matter, the personnel of the hospital and their abilities are often unknown to the surgeon. He may request the assignment of a particular person but usually has little voice in the selection of those who will assist him. The surgeon’s own acts, which most directly affect the life and well being, of a patient, charge him with his own awesome responsibility. He should not also be saddled with the role of guarantor of the patient’s safety from the negligence of others.

Nor do we accept the rationale of those decisions based' on the borrowed servant doctrine, which provides that an employee may- with his acquiescence or consent be lent by his general employer to a third person for the rendition of a special service, and thereby become the employee of the latter in the performance of such special work. The relationship of employer-employee is not an ephemeral one to be imposed or removed lightly. There are certain rights which accrue to the employee and liabilities which attach to the employer. For tírese reasons the law requires that before a person may be considered a borrowed servant his services must be loaned with his acquiescence or consent (M & M Electric Co. v. The Industrial Com., Sup.Ct.No. 45494, Agenda 13, January, 1974); and he must become wholly subject to the control and direction of the second employer, and free during the temporary period from tire control of the original employer. (Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 123, 171 N.E.2d 60.) In order to create the relation, therefore, the original employer must resign full control of the employee for the time being, it not being sufficient that the employee is partially under the control of a third person. (I.L.P. Employment §2, page 368.) It would thus appear under this doctrine that both the doctor and the hospital could not be hable for the same negligent act of the hospital’s “employee.”

While the right to control the manner in which the work is done is an important factor, it is not a conclusive one. In Nordland v. Poor Sisters of St. Francis Seraph of Perpetual Devotion, 4 Ill.App.2d 48, 59, 123 N.E.2d 121, an intern sued a hospital for injuries received while he was assisting surgeons during an operation. Summary judgment was granted for the hospital on the ground that the plaintiff was -an employee of the hospital and thus subject to relief only under the Workman’s Compensation Act. The plaintiff contended that at the time of his injury he was a loaned employee of the surgeon. The court held, as a matter of law, that he was not:

“In the case before this court it was a part of the hospital’s business to furnish the use of the intern, and the fact that during the period of the operation the intern was subject to the direction of a physician does not change the relationship. Here the furnishing of the intern necessarily involved the circumstances that the intern furnished would carry out the directions of the physician in charge, and such duty is recognized by the rales of the hospital governing interns: that he will fulfill orders for treatment given by the attending physician and his own orders must not conflict with those. When he was injured he was acting for the hospital under the directions of the surgeon. It still was the duty of the hospital to see that he carried out the directions devolving upon him as an intern. If the plaintiff did not exhibit the knowledge and skill which a person of his medical education and position should exhibit, or if he did not comply with the directions of tire physician, he could have been discharged by the hospital.”

A nurse is still subject to the rules and regulations of the hospital, and the doctor may not gainsay them. (Olander v. Johnson, 258 Ill.App. 89.) She may be discharged by the hospital but not by the doctor. The hospital, not the doctor, furnishes the equipment that the nurse uses, and she is paid by the hospital. (See Coontz v. The Industrial Com., 19 Ill.2d 574, 577, 169 N.E.2d 94.) We conclude, therefore, that the employees of the hospital assisting a surgeon remain the employees of the hospital even though the surgeon retains some degree of control over them.

We do believe, however, that analogous authority supports the general rule that a doctor may be held liable for the negligence of a hospital employee who is subject to the doctor’s control or supervision. The law imposes a duty, for example, on one who entrusts work to an independent contractor, but retains the control of any part of the work, to exercise that control with reasonable care. (Restatement (Second) of Torts § 414.) As the comments to section 414 of the Restatement point out, liability may attach to one who retains less than that degree of control necessary to establish the relationship of master and servant. Similarly, if a surgeon retains supervision or control over other persons participating in an operation, he should be required to exercise that control with reasonable care.

The defendant relies on Hall v. Grosvenor, 267 Ill.App. 119, and Olander v. Johnson, 258 Ill.App. 89, in support of her contention that there can be no liability in the absence of a master-servant relationship. We do not believe that these two cases are authority for a rale that would preclude recovery against the surgeon in every case where the negligent acts which directly caused the injuries were performed by hospital employees. It is true that both cases made the following statement: “Generally an operating surgeon is not legally responsible for the mistake of a nurse not his employee, where an operation is performed at a hospital not owned or controlled by the surgeon.” (Emphasis added.) But the statement must be examined in the light of the facts of the cases. Both involved gauze sponges that were left in the patient’s abdomen.

In Olander, the nurses employed by the hospital kept a record of all sponges, and the method of recording and reporting the sponge count was fixed by hospital rules. At the close of the operation the surgeon examined the field of operation and was unable to see any sponge left in the body. He then asked for the sponge count which was reported as correct. It was conceded that the operating surgeon must devote his entire time to the operation and that it would jeopardize the life of the patient for the surgeon to take the time to keep a count and make a record of the sponges used. The record disclosed that in an abdominal operation the sponges become soaked with blood and secretions and may feel like any other tissue; that occasionally they become rolled up in the abdomen behind the bowels; that the sponges cannot be seen or felt readily; and that it is sometimes almost impossible to distinguish the sponges from the tissues of the abdomen or to locate them. The record also showed that after the surgeon had removed the plaintiff’s appendix and operated upon the womb, he made an inspection of the field of operation and did not find any sponge left in her body, and that to have made a further exploration would have been dangerous to the patient.

The Olander court noted that it was the right of the hospital to prescribe reasonable rules for the conduct of the institution. Any physician who used the operating room was required by the rules of the hospital to employ the equipment of the hospital. It included the nurses in attendance, the sponges supplied and the records kept. Every physician who availed himself of the privilege of operating in a hospital was required to conform to the rules of the hospital. The court said at page 99:

“It is indisputable that the operation involved in this case was conducted, so far as the defendant’s conduct was concerned, in strict accordance with the established rules and customs of the hospital. It is not denied that he endeavored to see that the rules of the institution concerning the count of sponges were carefully and correctly carried out. That a mistake was made by one of the nurses was no fault of his and appears to have been made in spite of his caution. He inquired about the count and was informed that it was correct. He made an ocular examination without dis-. covering the error, He followed the approved method of examine ation unless it is known that a sponge is missing. Under all the circumstances, we do not see how he could have been expected to do more.” (Emphasis added.)

Would the Olander court have held that the surgeon was relieved of liability as a matter of law if he made no examination of the field and made no request for a sponge count? We think not. And would it have so held if the method of sponge counting had been left to the discretion of the surgeon and he decided to dispense with one? Again, we think not. In short, just as a rule making a surgeon liable for every negligent act of every hospital employee under his control is too harsh, a rule exculpating him for every negligent act of persons under his control simply because they are not his employees is too lenient.

The questions then become: Could a fact finder conclude that Dr. Hausman retained control or supervision over Meyer and, if so, did he fail to exercise that control or supervision with reasonable care?

Sylvester Schroeder had been the Administrator of Englewood Hospital. He testified that the individual surgeon was responsible for the surgical procedure when assisted by an anesthetist, rather than an anesthesiologist, who is a physican. The surgeon had the privilege of deciding what anesthetic agent would be used.

Dr. Joonsak Yu, a house physician at Englewood Hospital who was at the time of trial in training as an anesthesiologist, testified that during an operation the surgeon is in charge of the entire procedure in the operating room. He said that it was good anesthesia practice to observe a patient’s chest during a surgical procedure and that this can be accomplished by using a screen. After the surgery is completed the surgeon customarily checks into the condition of the patient before he leaves the operating room and remains until the patient is breathing spontaneously.

Dr. Henry Pimentel, who made the original diagnosis of the deceased, testified that the surgeon decides how a patient should be draped, that is, how he should be covered with the sheet, and the anesthetist may not overrule him. He also said that the surgeon is the head man in the operating room and the other people are there to assist him. In shoulder separation cases the patient’s face usually can be exposed. In his opinion it was not standard medical practice after an operation to move the patient from the operating room to the recovery room without resuscitative equipment going along with him when he is not breathing. The patient should not be moved from the operating room unless he is breathing spontaneously. He also testified that it is usual and customary for a surgeon to remain in the operating room until he sees that the patient is breathing properly.

Dr. Eckenhoff testified that nurse anesthetists require supervision by the surgeon just like any nurse. It is the surgeons prerogative to leave the operating room provided he has a trusted anesthetist in charge and at the same time recognizes that he is responsible. In surgery for a shoulder separation, the usual procedure is that the anesthetist has access to a patient’s face. One of the reasons for having access to a patient’s face, particularly in a black person, which Foster was, is that there are few places on the body where cyanosis or oxygen lack can be detected. And the most sensitive areas for detecting cyanosis are about the face, such as the mucous membrane beneath the lips or the whites of the eyes. If the surgeon notices change in the color of the blood, it would be good practice for him to inform the anesthetist. He further testified that where the surgeon is directly responsible for the anesthetic, it is his duty to ascertain that the patient is in good health and in good condition upon the completion of the operation, and, in fact, to supervise his care as he is moved to the recovery room. He also testified that the breathing of a patient on continuous drip relaxant, such as anectine, must be assisted or controlled at all times and no patient under any circumstances ever should be transported if he is not breathing without assistance.

Meyer testified that a patient can be breathing at three levels: (1) spontaneous, that is, without any assistance; (2) assisted, that is, breathing shallowly and assisted by the anesthetist’s hand on the bag of the machine; and (3) controlled, that is, the patient is being supported totally by artificial means. Foster’s blood pressure was decreasing during the operation. She first assisted him when she started the anectine at 10:25 a.m. The patient was breathing shallowly during the course of the operation, and she was assisting him by manipulating the bag by hand on the anesthetic machine. At 11 A.M. the patient was not breathing, and she was assisting him by totally controlling his aspiration. The operation closed at 11:05 A.M. while the patient was not breathing. Dr. Hausman left the operating room at 11:05 A.M. to perform another operation. He did not ask her anything about the patient. He left before the patient was sewn up and while he was breathing with assistance. From 11:05 to 11:10 she continued controlling Foster’s respiration and giving him oxygen. She asked the circulating nurse if a Bennett resuscitating machine was available in the recovery room. At 11:10 A.M. Foster’s respiration was totally paralyzed. He was lifted physically off the operating table onto a cart. She hyper-ventilated him, that is, she gave him an excess of oxygen which she estimated would last him about 3 minutes. He was then wheeled to a recovery room about 50 to 75 feet from the operating room. When he arrived in the recovery room the Bennett machine was being used by another patient. Meyer also testified that one of the methods of checking a patient’s breathing is by watching the intercostal activity, the movement of the muscles between the ribs. Since she could not observe this activity because of the draping, she felt it by placing her hands on his ribs. When Dr. Hausman ordered more muscle relaxant, she was required to take her hands off his ribs and thereby lost the detection of the intercostal activity. Dr. Hausman never told her that the patient’s blood was darker and would not tolerate the use of a bar or screen.

Elenita Diego, a nurse, testified that when Foster arrived in the recovery room his pulse was faint and she could not get a count, nor could she get a count on respiration. His blood pressure was 80/50. He was placed on the Bennett machine 5 minutes later. She also stated that a patient is not to be moved from the operating room who is not breathing spontaneously because there is a possibility the patient would expire in a few seconds. She said her opinion would be the same even if the patient were hyper-ventilated and had a blood pressure of 100/50.

This evidence shows that the surgeon decides how a patient is to be draped, and in this case tire patient’s face was covered. Hausman would not permit the use of a screen or bar. Thus it can be seen that Hausman’s decision to cover the patient’s face and chest and to deny the use of a screen affected the ability of Meyer to perform her duty.

The evidence establishes that Meyer should not have moved the patient from the operating room to the recovery room when she did. It also establishes that Dr. Hausman’s duty was to remain in the operating room until the patient was breathing without assistance. If he had remained, it would have been his right and duty to prevent Meyer from moving Foster. Under this evidence, we judge that a fact-finder could conclude that Dr. Hausman had direct supervision and control over Meyer and that he failed to exercise it with reasonable care.

The defendant argues that “neither the Illinois Statutes nor case law have imposed on surgeons an absolute duty to remain in the operating room until the suturing has been completed.” The allegations of negligence on the part of Dr. Hausman in the complaint were two-fold: (1) a failure to supervise and (2) leaving the operating room before the patient was breathing spontaneously. There is no allegation that he was negligent because he left before the suturing had been completed.

The defendant also argues that the plaintiff was required to prove by expert testimony that “acceptable medical practice always requires the surgeon to remain in the room until the patient is breathing spontaneously.” After Dr. Eckenhoff testified that the patient’s respiration should have been “assisted or controlled from the very beginning,” the following occurred:

“Plaintiff’s Attorney: Q. Now, with reference to moving the patient the question stated that hyper-ventilation had occurred prior to moving, and that the moving of the patient took less than a minute. Would that ordinarily be a period of time you would expect the hyper-ventilation to serve the needs of the patient?
Dr. Eckenhoff: A. From a theoretical point of view, a minute following a period of hyper-ventilation, depending upon how the hyper-ventilation was, would be permissible, except, as I say, one never transports a patient that is not breathing without assisting his ventilation.
Q. In your opinion, the hyper-ventilation could not serve through that period of time without assistance?
A. No, sir.
Q. During the period of time — from the time the actual closure of the surgical wound has occurred until the patient is removed from the operating room, what would be the usual and customary role of the operating surgeon?
Defense Attorney: Object to this because he doesn’t have the facts of the operating surgeon that was there.
The Court: Excuse me. Your objection is overruled. You may answer.
Dr. Eckenhoff: A. In this instance where the surgeon is directly responsible for the anesthetic, it is his duty to ascertain that the patient is in good health and in good condition upon the completion of the operation, and, in fact, to supervise his care as he is moved to the recovery room.” (Emphasis added.)

In our view, when one medical expert testified that it is the duty of another doctor to do certain acts, that was equivalent to saying that acceptable medical practice requires it. We also note that Dr. Pimentel testified that it was not standard medical practice to move a patient who is not breathing without resuscitative equipment going with him. He later said that a patient should not be moved unless he is breathing spontaneously.

The trial court granted judgment notwithstanding the verdict for the further reason that Dorothy Foster had failed to prove by competent evidence that the deceased had any “surviving spouse [or] next of kin.” (Ill. Rev. Stat. 1971, ch. 70, sec. 2.) Before this question may be resolved, it is necessary to recite the pleadings, the pertinent evidence and the rulings and remarks of the court.

The original and second amended complaints alleged that the deceased left surviving his wife and three children. Hausman’s answers to the original and second amended complaints neither admitted nor denied this allegation but demanded proof. The trial began on October 20, 1971; and on October 27, the plaintiff filed a third amended complaint, again alleging that the decedent left a wife and three minor children surviving. After the verdict the defendant answered, denying that allegation. On November 29, the post-trial motions of all defendants were heard. Before the arguments began, the attorneys for the plaintiff asked that there be added or incorporated into the complaint a copy of an order of the Probate Court declaring Dorothy Foster the widow, and three children the heirs and next of kin of the deceased, and a letter of administration dated October 3, 1969, stating that Dorothy Foster had been appointed administrator of Vercey Lee Foster’s estate. No date nor signature of a judge appears on the order declaring heirship, but one of the attorneys for the plaintiff told the court that both matters had been entered “long prior to the trial of this case.” Over the objection of Hausmans attorney, the plaintiff’s motion was allowed.

When Dorothy Foster was called as a witness, the following occurred:

“Mr. Demos: Mrs. Foster, would you take the stand, please?
(Witness sworn.)
Mr. Harrold: If the court please, on behalf of the estate of Dr. Charles Hausman. under the law, under the Evidence Act, and under the Dead Man’s Act, we move that the witness be barred from any testimony with regard to Dr. Charles Hausman and the estate of Dr. Charles Hausman.
The Court: Ladies and gentlemen of the jury, you are instructed that you are not to consider the testimony of this witness against the estate of Dr. Hausman; that is, Mr. Harrold’s client. You may consider the testimony with regard to the other defendants in this proceeding. You may proceed.”

No evidence of heirship, other than Mrs. Foster’s testimony, was introduced before the jury. At the close of the plaintiff’s case, the attorney for Hausman moved for a directed verdict on the ground that there was no proof that there was a widow or that there were any children. After hearing arguments from both sides concerning the applicability of the Evidence Act, the court said:

“All of the commentators seem to agree that the Dead Man’s Act is an anachronism and shouldn’t be allowed into our law. And I can see why they agree on it, because you can reach a ridiculous result that she couldn’t testify on the date of birth — Of death or the date of their marriage, or anything else. I don’t think it applies here. Your motion will be denied.”

In ruling on the post-trial motions, the court said:

“With regard to the defendant Hausmans motion, the motion for judgment notwithstanding the verdict, the defendant Hausman raises two points, and the point concerning evidence on section 2 of the Evidence Act, and a general insufficiency of the evidence with regard to the estate of Charles Hausman, the court finds that each of these arguments it believes to be valid, and the motion for judgment notwithstanding the verdict will be allowed.”

From the trial court’s final ruling we conclude that: it determined that the records of the Probate Court offered at the post-trial motion were either submitted too late, were not sufficiently authenticated, or were not binding on the defendant Hausman because she was not a party to the Probate Court proceeding; and it reversed its previous ruling on the applicability of the Evidence Act at the close of the plaintiff’s case and adhered to its original ruling that the Act did bar Dorothy Foster’s testimony against the estate of Dr. Hausman.

We agree that the purported records of the Probate Court could not provide the requisite proof of heirship since they came after the proofs were closed and after judgment. Amendments to pleadings after judgment are permitted only to conform to the proof offered at trial, and new proof may not be submitted under the guise of an amendment to the pleadings. Further, the unsigned, undated, uncertified “order” of heirship is a mere piece of paper that is entitled to no weight.

Section 2 of the Evidence Act, in effect before October 1, 1973, provided in part that no interested party to any civil action “shall be allowed to testify” when any adverse party sues or defends as the administrator of any deceased person. The Act contained a number of exceptions to this general prohibition:

1. If the interested party is called as a witness by the adverse party suing or defending as an administrator.

2. The interested party may testify to facts occurring after the death of the deceased.

3. If an agent of the deceased testifies on behalf of the administrator to any conversations or transactions between the agent and the opposite party or party in interest.

4. If the party suing or defending or any party having an interest in the action testifies on behalf of the administrator to any conversation or transaction with the opposite party or party in interest.

5. If any witness testifies on behalf of any party to any conversation or admission by any adverse party or party in interest occurring before the death and in the absence of the deceased.

6. If the deposition of the deceased person is read at the trial.

Of the six exceptions, five occur when the deceased’s representative “opens the door.” The other permits any evidence of all facts occurring after the death of the deceased.

The primary purpose of construing statutes is to determine the intent of the legislature. Why was evidence of facts occurring after the death of the deceased excepted? The only rational explanation seems to be that the legislature intended to bar only that evidence which the deceased himslf could have refuted. The defendant argues that whether Dr. Hausman could refute the testimony offered is immaterial to the operation of the statutory bar citing Engstrom v. Edgar, 126 Ill.App.2d 369, 261 N.E.2d 788. In that case the plaintiff was injured in a funeral home owned by the deceased. The case is silent on the facts of the accident since no evidence was heard. Tire plaintiff contended that the deceased could not have offered relevant testimony on the question of negligence and, therefore, there was no need to invoke the statute. Significantly, the Engstrom court pointed out that what the deceased might actually have testified to was pure speculation.

More directly in point is the case of Martin v. Miles, 41 Ill.App.2d 208, 190 N.E.2d 473, where the plaintiff’s administrator made a motion out of the presence of the jury to prohibit the defendant from being called as a witness. He argued that otherwise he would be required to object in the presence of the jury who might conclude that he was withholding evidence. The appeHate court upheld the denial of the motion stating at page 210:

“It is obvious that defendant could have been competent to testify concerning matters not directly relating to the accident or the injury, and as to conditions after the death of plaintiff’s intestate.” (Emphasis added.)

There is, in addition, persuasive authority from other jurisdictions which support the plaintiff’s position. In Elsea v. Smith, 273 Mo. 398, 408, 202 S.W. 1071, 1073, the Supreme Court of Missouri said:

“It is a well-worn maxim that ‘the reason of the law is the life of the law.’ The purpose of this statute, it is true, is to silence the voice of one of the parties to a litigated proceeding, where death has hushed into eternal stillness that of the other; but it must be construed in a reasonable manner and one compatible with the purpose of its enactment. [Citation.] This statute was not intended to render incompetent as a witness for all purposes the surviving party to the proceeding, but only to the extent that his testimony might be subject to question by the other party if living. In other words, the disqualification is not general, but is limited to transactions between the witness and the party then dead. [Citations.] Ruled otherwise, the reason for the statute ceases to exist.”

In Fellows v. Farmer (Mo.App.), 379 S.W.2d 842, a widow sued the defendant administrator for the wrongful death of her husband. She was permitted to testify over objection that on the date of the accident her husband was a soldier, 32 years of age, stationed at Fort Leonard Wood, and earning $188 per month. The Appellate Court of Missouri, citing Elsea v. Smith, upheld the ruling of the trial court.

While we have found no other statute with the precisely same language as the Illinois Act, our research has disclosed, without exception, the same interpretation of the Dead Man’s Act: The interested party is barred from testifying only as to matters which the deceased could have refuted. See Sansom v. Sturkie, 245 Ala. 514, 18 So.2d 267; Krause v. Emmons, 29 Del. 104, 97 A. 238; Snow v. Snow, 71 Ga.App. 316, 30 S.E.2d 823; In re Mueller’s Estate, 166 Neb. 376, 89 N.W.2d 137; Tollman v. First National Bank of Nevada 66 Nev. 208, 208 P.2d 302; Hollister v. Fiedler, 17 N.J. 239, 111 A.2d 57; In re Enggren, 174 Misc. 194, 20 N.Y.S.2d 384; Wilson v. Ervin, 227 N.C. 396, 42 S.E.2d 468; Rothman v. Gillett (Texas Civil Appeals), 315 S.W.2d 956.

The record shows that Dorothy Foster’s deposition had been taken and her marital status questioned before trial. She was married in a church in Memphis, Tennessee, in August, 1964. She and the deceased got a marriage license in Chicago in January, 1965. Their first child was bom in June, 1965, and two others later. All the children were bom in Chicago. Assuming the argument of the defendant to be correct, how would Dorothy Foster prove that she was married to the deceased? It would require more than a marriage certificate because the same names would not be sufficient. Someone would still be required to prove that the parties named in the marriage certificate were in fact the deceased and Dorothy Foster, the administrator. The only possible way of proving the marriage would be the testimony of someone, other than Dorothy, who was present at the ceremony. How could the three children, 6, 4, and 3, establish their ages and their heirship without the testimony of their mother? Birth certificates would not be sufficient, not only because they are sometimes incomplete and inaccurate but, at best, would contain only names of the parents that were the same as the names of the decedent and the administrator. But, most important, how would Dr. Hausman himself have refuted her testimony?

In Smith v. Billings, 177 Ill. 446, 452, 53 N.E. 81, the court interpreted the Illinois statute as follows:

“The theory of the general statute, innovating, as it did, so thoroughly upon die rule of the common law, was, that the light should not be excluded because it might come from a possibly interested source, and hence that those persons, the parties who were presumed to know more about the transaction in dispute, should each be allowed to give their own version of the transaction, leaving the jury to judge of their credibility. But in perfect harmony with this general theory, and in the utmost accord with the reason of the law, it was deemed wise to provide that if one could not, by reason of death, give his version neither shall the other. The want of opportunity to assist in the preparation of the cause by the decedent is not the sole ground for excluding the testimony of the survivor, nor by any means the principal ground. The prime reason is found in the inability of the party to oppose his statements, — his testimony, — to that of the surviving adversary, and this has been more than once announced as the reason of the law. [Citations.]”

See also VanMeter v. Goldfarb, 317 Ill. 620, 148 N.E. 391; Combs v. Younge, 281 Ill.App. 339; Rouse v. Tomasek, 279 Ill.App. 557.

It has been said repeatedly that tire purpose of the Dead Man’s Act was to prevent fraudulent claims against an estate and to put tire parties on equal footing. The estate of Dr. Hausman had the precisely same evidentiary capability that Dr. Hausman himself would have had to refute the contentions of Dorothy Foster. The invocation of the statute in this case would do nothing but defeat the valid claims of the widow and three small children. “[T]he courts have always endeavored to construe the statute according to its spirit and not merely according to its letter.” Butz v. Schwartz, 32 Ill.App. 156, 159, affirmed, 135 Ill. 180, 25 N.E. 1007.

We note parenthetically that the present section 2, which became effective October 1, 1973, and expressly applies only to proceedings filed after that date, provides: “No person shall be barred from testifying as to any fact relating to the heirship of any decedent.” Our decision, of course, does not rely on the present statute.

We judge, therefore, based on precedent and what we deem to be the construction of the statute according to its spirit, that the court correctly interpreted the act on the motion for a directed verdict and erred when it reversed itself and granted judgment notwithstanding the verdict.

No question is raised of the sufficiency of the evidence to support the verdict against the hospital and Grace Meyer. They seek a new trial contending only that the trial court erred in not striking from the evidence a life expectancy table.

After the plaintiff had testified, her attorney offered the life expectancy table, Plaintiff’s Exhibit No. 19. The court asked whether there was any objection, and after the attorney for the hospital and Meyer said: “No, Your Honor,” the table was read to the jury. It recited the life expectancies of the deceased, his widow and his three children. The plaintiff then rested, and after colloquy between the court and counsel the jury was excused until the following morning. The attorney for the hospital and Meyer then made a motion to strike the exhibit and the evidence read from it on the ground that no evidence had been introduced “to reduce down to present day cash value any pecuniary loss which [might] be used in conjunction with the life expectancy table.” The motion was denied. At the conference on instructions, no objection was made to Plaintiffs Instruction No. 11 (Illinois Pattern Instructions — Civil 34.05), which provides that, in calculating the amount of pecuniary benefits the survivors would have received from the deceased, the jury was not simply to multiply the life expectancies by the annual benefits but, rather, to determine the present cash value of the benefits. Both sides ásserted before the jury their respective theories of how the evidence should be construed under the guidelines of the instruction to determine “present cash value.”

Because of this instruction, the defendants argue that no evidence of life expectancy should have been admitted without an actuarial table or testimony of an actuary or economist. No Illinois case has been cited in support of the defendants’ contention. The Committee Comments are silent with respect to any foundation proof necessary to support the admission of the mortality table or the'instructions which refer to it. See also Illinois Pattern Instructions — Civil 34.04.

The defendants have cited three cases from the 3d Federal Circuit in support of their position: Ballantine v. Central R.R., 460 F.2d 540; Haddigan v. Harkins, 441 F.2d 844; and Russell v. City of Wildwood, 428 F.2d 1176. In each of those cases mortality tables were introduced into evidence, apparently without objection. What was objected to, unlike this case, was the instruction of the court concerning the jury’s duty to reduce future lost earnings to present worth. The circuit court held that the instruction should not have been given because the plaintiff had not submitted “any actuarial evidence or guidance from which the jury could have made the calculation of present worth required by the damage charge.” (Haddigan v. Harkins, 441 F.2d 844, 853.) Thus, the jury was permitted to receive certain evidence without objection but was to be given no guidance by the court as to what they were supposed to do with such evidence. We are not persuaded of the soundness of a holding that produces such a result.

We need not pass on the question, however, because in our view the defendant has waived the point by failing to make timely objection in the trial court. It is the general rule that an objection to the admission of evidence must be made in apt time, that is, at the time of its admission. (People v. Trefonas, 9 Ill.2d 92, 98, 136 N.E.2d 817.) If the defendants’ position is correct, the defect in the evidence — the absence of a proper foundation — was present at the time the exhibit was offered. If the trial court had struck the evidence after the plaintiff had rested, the plaintiff would then be placed in the position of moving for leave to reopen her proof to supply the necessary foundation, a motion which might or might not be granted in the court’s discretion. We judge that by waiting until the exhibit was received and read to the jury and the plaintiff and rested, the defendants did not object within apt time.

For the foregoing reasons the judgment notwithstanding the verdict in favor of Dr. Hausman’s estate is reversed; and the judgment in favor of the plaintiff and against the defendants, Meyer and Englewood Hospital Association is affirmed.

Judgments reversed in part and affirmed in part.

BURKE and HALLETT, JJ., concur.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    James J. Cronin, Adm’r of the Estate of Clara Schmidt, Deceased, Plaintiff-Appellant, v. Delta Air Lines, Inc. et al., Defendants—(Delta Air Lines, Inc., Appellee.)
    (No. 57991;
    First District (5th Division)
    May 17, 1974.

      Rehearing denied June 18, 1974.

      John C. Ambrose and Philip J. Schmidt, both of Chicago, for appellant.

      Peterson, Ross, Rall, Barber & Seidel, of Chicago (Irving G. Swenson and Arthur C. Perivolidis, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from an order granting summary judgment in favor of defendant Delta Airlines (Delta). Clara Schmidt (plaintiff) filed a complaint seeking damages from Delta, the City of Chicago (City) and Otis Elevator Company (Otis) for injuries sustained in a fall on an escalator in the O’Hare International Airport terminal building. After the filing of her complaint, plaintiff died and an administrator was substituted.

Motions for summary judgment by Delta and the City were followed by a second amended complaint, which alleged that plaintiff deboarded a Delta plane and was using an escalator in the terminal area as the means provided for her to reach the baggage area, where Delta was to bring her luggage. It was further alleged that her fall resulted from tire condition of the escalator, tire negligence in its maintenance and because of a failure to act by the defendants with reasonable care in other respects. Delta, in its answer, generally denied the allegations of the complaint and contemporaneously reasserted a previously filed motion for summary judgment. In the motion for summary judgment, Delta asserted that it was not liable to plaintiff as a matter of law because: (1) the accident occurred on an escalator between the main and lower levels of the terminal; (2) the escalator was at least three-quarters of a block to a block from the deboarding gate of plaintiff’s plane; and (3) the escalator was not installed, operated or maintained by Delta. This motion was supported by short excerpts from the depositions of plaintiff and her son, confirming the facts alleged by Delta. In effect, Delta asserted that it had no duty to provide for the plaintiff’s safety at the place where the injury occurred.

Plaintiff, in her answer to Delta’s motion, alleged that defendant was liable “in accordance with the law of Illinois on liability of a common carrier for injuries which occur on the premises of a terminal which is rented by an airline from a municipality.” In a reply to plaintiff’s answer, Delta further argued that there was no dispute that it “did not design, manufacture, install, operate, maintain, supervise or control the escalator in question” and, therefore, no triable issue of fact existed against Delta. Delta did, however, admit to the lease arrangement it had with the City, wherein Delta was and is granted the right to use the public facilities of the airport, including the escalators.

The trial court granted Delta’s motion for summary judgment, finding: “that there are no material issues of fact as to the matters raised in the motion for summary judgment of defendant Delta Airlines, Inc., and as a matter of law said defendant cannot be held liable to plaintiff herein.” (Emphasis added.)

OPINION

The purpose of the summary judgment procedure is to render expeditious judgment on a question of law, but only after first deciding that no genuine issue as to any material fact exists between the parties. (Applicolor, Inc. v. Surface Combustion Corp., 77 Ill.App.2d 260, 222 N.E.2d 168.) The court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. (Giova v. Carrol, 109 Ill.App.2d 259, 248 N.E.2d 836.) In its motion for summary judgment, Delta contended that it owed no duty to the plaintiff at the place where the injury was sustained, since the injury occurred some distance from the point where plaintiff deboarded the Delta plane. On the basis of this contention, as noted in the judgment order, the trial court, as a matter of law, determined there was no duty owing and Delta could not, therefore, be liable to the plaintiff. On appeal, Delta argues that it was not negligent and therefore not liable to plaintiff. It is interesting to note that Delta now disavows the express ruling rendered by the trial court by stating: “[T]he Trial Court did not rule that Delta had no duty to Clara Schmidt or that under no circumstances could Delta be held liable.” It is, according to the record and Delta’s motion, on this exact point which the trial court made its finding. It appears to us that the question of its negligence was not raised by Delta in the trial court. The judgment order was specifically limited to “matters raised in the motion for summary judgment of defendant Delta”; which “matters” deal exclusively with the question of whether a duty was owed to plaintiff. In addition, Delta’s memorandum of law and its affidavit in support of the motion for summary judgment contain no reference or assertion with respect to the question of Delta’s negligence.

We are apprised of the fact that the preclusion of raising matters for the first time on appeal is limited to appellants and, conversely, that appellees may raise any point in support of a judgment so long as there is some basis for it appearing in the record. We believe, however, that the issue of defendant’s negligence was not before the trial court when it passed on defendant’s motion for summary judgment. As we have stated above, the trial court specifically limited the breadth of its holding to those matters raised in defendant’s motion; which matters dealt with the duty, or lack of it, owing to plaintiff. Moreover, although a reviewing court is not constrained to follow the reasoning of a trial court as the basis for its ruling, and may consider other matters appearing in the record in order to affirm (Haney v. Haney, 37 Ill.App.2d 216, 185 N.E.2d 409), we believe it would be manifestly unfair here to sustain defendant’s motion for summary judgment- on the basis of its alleged lack of negligence, since the question was not raised by defendant and not considered by the court. We recognize that City’s motion for summary judgment, which was supported by the filing of plaintiff’s evidentiary deposition, did raise the question of negligence; however, there was never any hearing on this motion, and before a response was forthcoming from plaintiff, the City settled and was dismissed as a party defendant. Under these circumstances, it would appear that there was no requirement on plaintiff to respond to the issue of negligence raised in City’s motion. An appellate court should not consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial. (Hux v. Raben, 38 Ill.2d 223, 230 N.E.2d 831.) Therefore, while it is the rule that affirmance could be based on any reason appearing in the record, its application here, in the absence of the question of negligence being raised by defendant in the trial court, is unwarranted.

In view of the foregoing, we reject the contention of Delta that the judgment was based upon a finding that as a matter of law there was no negligence on Delta’s part.

We note also that Delta, in its brief, makes the following statement: “[C]f course a carrier has duties towards its passengers and others and it may be liable if it breaches a duty upon or in facilities owned, leased by, or otherwise used by it.” It is with this proposition that we agree and conclude that the granting of summary judgment finding an absence of any duty owing to plaintiff is incorrect. Under the circumstances of the instant case, we believe the rule of law should be that the duty of Delta extends to areas in the terminal facilities leased to it and reasonably utilized by its passengers and invitees. This principle was stated in the early case of Dean v. Yelloway Pioneer System, Inc., 259 Ill.App. 180, where the plaintiff sued the defendant bus company for injuries received as the result of a fall in a station leased by the defendants. There, defendant denied ownership and operation of the station and averred that it had no supervision or control of the premises where the injury occurred. The court, nevertheless, found that defendant was bound to use ordinary care in maintaining the station premises for its passengers. We believe that it follows that, after passengers have deboarded, an air carrier owes them a duty to exercise ordinary care in the maintenance of those portions of the terminal that passengers could reasonably be expected to go. Here, plaintiff alleged she was using the escalator to reach the area in the terminal where Delta was to bring her luggage, and the question of whether Delta should reasonably have expected her to do so is one of fact for the jury. This proposition is consistent with a number of cases considering the question raised here. See Delta Air Lines, Inc. v. Millirons, 73 S.E.2d 598 (Ga. App. 1952); Crowell v. Eastern Airlines, Inc., 81 S.E.2d 178 (N.C. 1954); Polara v. Trans World Airlines, Inc., 284 F.2d 34 (2nd Cir. 1960); City of Knoxville v. Bailey, 222 F.2d 520 ( 6th Cir. 1955); Hightower v. City Council, 184 S.E.2d 678 (Ga. App. 1971); Garrett v. American Airlines, Inc., 332 F.2d 939 (5th Cir. 1964); 3 A.L.R. 3d 938.

In view thereof, we find that the trial court was incorrect in deciding that as a matter of law Delta owed no duty to plaintiff for the injuries received as the result of falling from the escalator. The judgment is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

DRUCKER and BARRETT, JJ., concur.