author: Mr. JUSTICE TRAPP

text:
    Carol V. Hazelwood, Plaintiff-Appellant, v. Louis E. Hazelwood, Defendant-Appellee.
    (No. 11751;
    Fourth District
    June 27, 1974.
    Robert L. Silberstein, of Silberstein & Napoli, of Peoria, for appellant.
    William S. Schildman, of Jacksonville, for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

The plaintiff wife procured a divorce through a decree dated August 1, 1969. It reflects that the parties agreed that in the best interests of the children, aged 5 and 3 years respectively, custody should be awarded to the wife. On March 9, 1970, the husband filed a petition for a change of custody from the wife to himself. On August 18, 1970, an order was entered placing the temporary custody of the children in the parents of the wife. This order stated that the parties agreed that such change was for the best interests of the children. After several hearings during September and October, on December 30, 1970, the court entered an order finding that it was in the best interests of the children that custody be changed to the husband. The wife appealed.

The critical issue is whether the finding of the circuit court determining the best interests of the children is contrary to the manifest weight of the evidence. (Maroney v. Maroney, 109 Ill.App.2d 162, 249 N.E.2d 871.) Here, we find that the evidence supports the court’s finding. While the manner of presenting the testimony makes it difficult to state a clear chronology and pattern of living, it is clear that after the date of the decree for the divorce the wife has never seriously undertaken to provide a home for the children, or to regularly be a part of a home with them.

The record shows that under the decree for divorce the wife received a modern home in White Hall but thereafter sold it. The testimony shows that she purported to attend college in Jacksonville at the expense of her parents, and there rented two or more homes during the latter part of 1969 and early 1970. Ostensibly, the wife procured a home in Jacksonville so that she might study in the evenings, but it appears that she dropped out of school in early 1970 to avoid being failed completely. She continued, however, to reside in Jacksonville. During the period before and after dropping out of school, there is testimony that her home was the scene of gatherings of people late at night and continuing early into the morning. There is conflicting testimony concerning drinking by minors at these affairs and smoking marijuana. The wife only denies that there was drinking on an occasion when the children were in the home.

So far as can be ascertained, the children substantially lived with the wife’s parents, both before and after the order for temporary custody. They resided some 30 miles distant from Jacksonville and plaintiff saw the children only upon visits once a week and occasionally more often. There is no testimony that she took part in the daily care or providing for them.

It appears that after dropping out from the college, the wife worked for a short time at a bar, although she was paid no wages. Thereafter, she went to Peoria choosing to live in a slum area and apparently having some employment. During this time she would see the children at irregular intervals, not more often than once a week.

The wife testified that she had tried to kill herself, that her father and her then attorney persuaded her to enter a hospital for psychiatric care. She called a clinical psychologist who had treated her, as a witness. He testified that she suffered from an emotional anxiety characterized by poor mental judgment and that “she was functioning at a very hedonistic level.” This was said to mean that her thinking was directed to her own wishes and needs. The psychologist testified to at least three events described in evidence which show that she exercised very poor judgment. Upon one occasion she placed the children with a person hardly known to her who took them on an unauthorized trip and was involved in an automobile accident, although the children avoided injury. He testified to another example of poor judgment in the handling of her money affairs.

The psychological prognosis was guarded in the language “that if she would follow and continue treatment” until “we determine that it should be discontinued” he believed “that the possibility of a recurrence is rather low.”

Two witnesses related to the wife by marriage testified that she had not been observed to help with the daily care of the children and took them to her parents if she wanted to do something. There was, however, testimony by witnesses who saw her from time to time in public with the children and stated that they were happy and well-adjusted.

The wife testified that 2 weeks before the final hearing upon custody she had arranged to return to her parents’ home, that she would withdraw from her association with the people who had influenced her way of life and would care for the children. This planned reformation, however, was marred by the cross-examination of her father who testified that after she moved home she was away during a number of nights in the period of 2 weeks and was not at home “all of the time.” Rebuttal testimony indicates that on the night prior to the final hearing she spent the night with a man with whom she had admittedly been cohabiting during 1970.

The record shows that the husband has re-married, has an adequate home and plans to obtain larger accommodations. He is employed. His present wife testified she expected to cease her employment and that she would willingly undertake to provide a home for the children and would expect to do so.

The wife argues that the evidence did not show that she was unfit as a mother. The record indicates that the position is debatable, but the real issue is whether or not she had, in fact, performed such a role. The court ruled in the aspects of the best interests of the children. Many cases have been cited. We note that in Jayroe v. Jayroe, 58 Ill.App.2d 79, 206 N.E.2d 266, and Brown v. Brown, 13 Ill.App.2d 56, 140 N.E.2d 528, the evidence was clear that the mother was, in fact, providing a home and was living with the children. In the cited Perisich v. Perisich, 6 Ill.App.3d 97, 284 N.E.2d 654, there was no admissible evidence showing the best interests of the children.

It is argued that the court erroneously considered a hearsay report made by a social agency. It appears that the wife’s former counsel had agreed to such an investigation and the making of the report. That report is not in tire record and there is nothing to suggest that the court considered such. His colloquy in ruling shows concern with matters of testimony and particularly with the evidence upon her way of life during the period since she had returned home. In the cited Harris v. Spencer, 86 Ill.App.2d 41, 229 N.E.2d 16, such report was the only evidence considered. In Patton v. Armstrong, 6 Ill.App.3d 998, 286 N.E.2d 351, there is specific reference to considering the inadmissible hearsay report.

The wife argues a claim of racial prejudice in that her regular male companion was described as a black and there was testimony she frequented taverns with mixed black or mixed patronage in Jacksonville. Nothing in the record suggests that such factors controlled the court’s determination. She argued the point in the trial court at which time judicial prejudice was disavowed. The court noted that a number of witnesses were black, including the former wife of the male associate. That witness testified that she had observed the witness’ then husband staying the night at plaintiff’s house in Jacksonville.

In reviewing the exercise of the court’s discretion, we note that in closing argument counsel for the wife urged that the court continue the custody of the children in her, but that the court impose unspecified conditions or restrictions upon her exercise of that custody.

There is ample competent evidence that the wife’s manner of providing a home and caring for the children had changed since tire date of the original decree awarding custody and that such affected the welfare of the children. (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300.) The discretion exercised by the court in changing custody was not against the manifest weight of the evidence. Maroney v. Maroney, 109 Ill.App.2d 162, 249 N.E.2d 871.

Tire judgment of the trial court is affirmed.

Affirmed.

SMITH, P. J., and SIMKINS, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE TRAPP

license: Public Domain

text:
    A. P. Rauwolf, Plaintiff-Appellant, v. Travelers Indemnity Company, Defendant-Appellee.
    (No. 12075;
    Fourth District
    June 27, 1974.

      Harlan Heller, of Mattoon, for appellant.
    Jack E. Horsley and Richard F. Record, Jr., both of Mattoon, for appellee.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

A jury returned a verdict of not guilty upon plaintiffs claim for punitive damages arising from the conversion of personal property. He appeals the judgment entered upon such verdict and the order of the court which apportioned costs to the parties equally.

Here, it is urged that the court erred in admitting evidence that the verdict upon the claim for punitive damages “was not justified under the evidence,” and that the court erred in admitting certain evidence.

In December, 1954, defendant became surety upon the bond of Hill Production Company given to the State of Illinois as required by the statute relating to permits for drilling oil and gas. In May, 1961, defendant and Hill Production executed a “rider” made a part of such bond which provided that if Hill failed to comply with the provisions of the statute, after due notice defendant’s surety was authorized to comply with the request of the Department of Mines and Minerals and “to remove or correct any existing violations”.

From the record it appears that plaintiff acquired the fee to the real estate in September, 1955, and that at various times in 1967, he acquired the personal property from Hill Production and the other parties interested. There is no issue as to plaintiffs ownership of the property.

In March, 1968, the Department of Mines and Minerals, acting through its official, Lane, sent a letter by certified mail to defendant, including:

“According to the records of this office there are still five plugged wells and one active well charged to the above described Blanket Bond. Hill Production Company has not replied to our requests. This is your THIRTY DAY NOTICE to restore the five plugged wells and to plug the one active well shown on the attached lists. We will appreciate your keeping us informed as to the progress in the matter."

On April 25, 1988, the same official wrote defendant referring to said notice and requesting a report upon the performance. Thereafter, defendant entered into an arrangement whereby one Harris plugged a well and restored five drill sites and for such services received the items of personal property at issue.

Defendant admits that it does not claim ownership or other interest in the personalty, that it did not, prior to removal of the property, examine records concerning the present ownership of the real estate or of the personal property and that it did not search for the Hill Production Company or its successors.

Plaintiff urges that the evidence clearly shows “a wilful, knowing appropriation of the property of the plaintiff”, and that the verdict of the jury cannot stand under the rule in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504. Essentially it is contended that upon these facts plaintiff is entitled to punitive damages as a matter of law.

The count in the complaint seeking punitive damages alleges that defendant did “maliciously and wickedly and fraudulently” remove the property of the defendant. No allegation is made of facts which show express malice directed against plaintiff, or of fraud. No facts pleaded or in evidence suggest that defendant knew that plaintiff owned the property, or that the taldng was directed against the interests of a known owner, or that defendant was acting in disregard of a known duty to others.

So far as can be ascertained from the record, the defendant by reason of its contract of surety, undertook to perform its legal obligation as such surety upon receipt of the “THIRTY DAY NOTICE” from the Department of Mines and Minerals, that Hill Production had not performed its statutory duty.

Upon such facts it cannot be said that there was any evidence showing express malice or an actual intent to injure plaintiff or any other.

Although plaintiff apparently alleges an intent to injure or defraud, the argument seeking punitive damages is in the context of wilful and wanton conduct. In Moore v. Jewel Tea Co., 116 Ill.App.2d 109, 253 N.E. 2d 636, wilful and wanton conduct is defined as essentially a failure to exercise ordinary care so gross that it shows a lack of regard for the interests of others. The substance of that opinion is that the record showed that defendant, in that case, had knowledge that its product had caused, or was likely to cause, injury to others.

Plaintiff has cited no authority determining that plaintiff had a legal obligation to search for Hill Production or its successors in ownership of the personalty. We are cited to no authority holding that the owner of the fee acquires any interest upon the personal property brought upon the premises by a lessee of oil rights. Although it appears that plaintiff negotiated with Hill Production, it is not contended that plaintiff notified defendant of the acquiring of the ownership of the personalty.

In Boudoures v. Galloway, 258 Ill.App. 30, the owner of the building sought damages, both actual and punitive, from the defendant. The tenant of the owner had contracted with the defendant to install a new heating system. Defendant removed the oil burner on the premises and installed a new one. The evidence was conflicting as to whether the defendant had retained the oil burner which was removed. The court reversed an award of punitive damages noting an entire lack of evidence as to any malicious wrong. For cases stating grounds for punitive damages see Annot., 54 A.L.R.2d 1361 (1957). See also Jeffersonville Silgas, Inc. v. Wilson (Ct. App. Ind. 1972), 290 N.E.2d 113.

The plaintiff urges that the court erred in permitting the official from the Department of Mines and Minerals to testify that plaintiff had not filed a bond for the operation of the oil leases prior to the time of the removal of the equipment by defendant. Such testimony was limited to the issues of punitive damages and the court expressed the view that if such bond had been filed the Department would not have issued the notice to defendant, or the transfer of interest would have been apparent to it.

In Roth v. Smith, 41 Ill. 314, plaintiff sued defendant for false imprisonment. After a verdict of not guilty, it was urged on appeal that it was error to permit defendant to prove that he was advised to make the affidavit which was the basis of plaintiffs arrest. The court held that such evidence was admissible to show the feelings of the defendant toward plaintiff, and said:

“The spirit which actuates a party who commits a trespass, enters largely into the question of damages. Where a party acts without malice, or under a misapprehension of facts, without malice or recklessness, he should not be punished with vindictive damages.” 41 Ill. at 318.

Plaintiff cites Dowdey v. Palmer, 287 Ill. 42, 122 N.E. 102, and Razor v. Razor, 149 Ill. 621, 36 N.E. 963, upon the issue of the admissibility of the Lane testimony. In each cited case, it was held that certain letters received and retained by an individual were not admissible as evidence of a meretricious relationship in the absence of evidence that such recipient approved or acted upon the matter contained in the letters. The issue here is the intent or mental state of defendant rather than that of the plaintiff. In the light of the authorities cited we conclude that Dowdey and Razor do not persuade.

Where plaintiff claims exemplary damages, it is for the jury to determine from all the facts and circumstances whether malice is shown and whether the case requires more than compensatory damages. Chapin v. Tampoorlos, 325 Ill.App. 219, 59 N.E.2d 334.

We find no error in the order of the trial court that each party bear the costs equally. Such determination is within the provisions of the Illinois Revised Statutes 1971, chapter 33, paragraph 12, which provides:

"“Where there are several counts in any complaint, and any one of them be adjudged insufficient, or a verdict on any issue joined thereon shall be found for the defendant, costs shall be awarded in the discretion of the court.”

Defendant cites Shapiro v. Grosby, 25 Ill.2d 245, 184 N.E.2d 855, and McFail v. Braden, 19 Ill.2d 108, 166 N.E.2d 46. In Shapiro, defendant prevailed upon all issues. It was held error to tax a part of the Master’s costs against the defendant. In McFail, it was held to be error to apportion costs equally where plaintiff had prevailed upon all issues. Neither case is controlling where, as here, the plaintiff prevailed upon his claim for compensatory damages, but defendant prevailed upon the claim for punitive damages.

The judgment is affirmed.

CRAVEN and SIMKINS, JJ., concur.

         “If the Principal herein shall fail to comply with the provisions of the above entitled Act, after due notice has been given to said Principal at his permanent address, and due notice has been given to the Surety that the Principal has failed to comply with the provisions of this Act, the Principal hereby authorizes the Surety to comply with the request of the Department of Mines and Minerals, Division of Oil and Gass [sic], after due notice to the Surety, to remove or correct any existing violations of the above entitled Act.”


author: Mr. JUSTICE CRAVEN

text:
    Paul L. Craft et al., Plaintiffs-Appellants, v. Melvin Acord et al., d/b/a Lary’s Tavern, et al., Defendants — (Ike Eichoff, d/b/a The Starlite Inn, Defendant-Appellee.)
    (No. 12239;
    Fourth District
    June 27, 1974.

      Dukes, O’Rourke, Stewart and Meyers, Ltd., of Danville (C. W. Dukes and Kenneth J. Meyers, of counsel), for appellant.
    Robert P. Moore, of Hayes & Moore, of Champaign, for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This appeal arises out of litigation brought under the Illinois Dram Shop Act (Ill. Rev. Stat. 1969, ch. 43, f 135) by Nancy Elaine Craft on behalf of certain minor dependents of one Paul Craft. The trial court entered judgment upon a jury verdict for defendant and the plaintiffs appeal.

On appeal, it is urged that the conduct of defense counsel was prejudicial; that his remarks in opening argument were not supported by evidence; that he failed to connect up certain evidence to relevant issues being tried; and that his remarks in closing were improper due to the failure to connect up the conditionally relevant facts with subordinate facts. Plaintiffs also attack the propriety of the expert testimony of Dr. Stan J. Bobowski and submitted that it should have been stricken.

The incident giving rise to this litigation occurred on March 19, 1971, when Paul Craft, who was allegedly intoxicated, engaged in a fight with Mr. A1 Roberts. The altercation took place around 2:30 A.M. outside of Lary’s Tavern. Mr. Craft sustained extensive head injuries as a direct result of the altercation.

With the incident at Lary’s Tavern, Mr. Craft terminated a long drinking bout, which began approximately 9 A.M. on March 18, 1971, at the Starlite Inn, the defendant’s tavern. Craft remained in the Starlite Inn until 2 P.M. He then returned home. He was allegedly in an intoxicated state at that time. He left home at approximately 2:45 P.M. ostensibly to go to work, but ended up at Lary’s Tavern sometime after 3 P.M. He remained there until 9:30 or 10 P.M. He then went to his place of employment and picked up his paycheck. He proceeded to go to another tavern and then to his brother’s residence where he remained until 12:30 A.M. Thereafter he returned to Lary’s Tavern.

Once at the tavern, Craft began to bother various patrons, including Mr. Roberts. He struck up a conversation with Roberts, the tone of which ranged from fraternization to belligerence. After Roberts left the tavern, Craft followed him, began calling him names, and eventually attempted to hit him, which resulted in Roberts defending himself and knocking Craft to the ground. According to Roberts, he had no idea why Craft assaulted him. Craft was unable to recall what precipitated his conduct.

In defendant’s opening statement it was submitted that the proximate cause of the altercation between Craft and Roberts was not Craft’s drunkenness but the rivalry between the two men who were purportedly dating Myrtle Newell. Counsel stated:

“In addition to that we feel that the evidence will show that actually what the fight was caused by was the fact that Mr. Craft being a married man was going with another woman, Myrtle Newell. Mr. Roberts was, too, and they had a disagreement and that is what caused the matter.”

During cross-examination of Roberts, defense counsel raised the existence of the rivalry that possibly existed between Craft and Roberts over Myrtle Newell. Counsel asked whether Craft became belligerent because he wanted Roberts to stop dating Myrtle Newell and that perhaps Craft had threatened him because he had been dating Mrs. Newell. Plaintiffs’ counsel objected, contending that the reference made to Newell was reversible error. The court sustained the objection.

On cross-examination of Craft, defense counsel asked him whether he had stopped and seen Myrtle Newell the day in question. An objection was made by plaintiffs’ counsel and defense counsel promised that “I am going to connect it up.” The court permitted the answer to stand. Defense counsel continued this line of questioning.

In closing argument, defense counsel made repeated reference to the relationship in question and that this relationship and not intoxication was the probable cause of Craft’s injury. On one occasion during the closing argument, plaintiffs’ counsel objected to defense counsel’s argument. Defense counsel stated:

“Now, Walter Newell, who was the son of the girlfriend, Myrtle, and you remember this is the girl that Paul Craft didn’t meet, except testimony was that he had met her for a year or more in the back in the booth in the comer in the dark at Mr. EichofPs Tavern.”

Plaintiffs’ counsel stated: “If the Court please, that wasn’t the testimony and we object.” The court sustained the objection. No other objection was made by plaintiffs’ counsel during cross-examination.

Dr. Stan Bobowski was called in defendant’s case-in-chief as an expert witness. The purpose of his testimony was to establish that the alcohol consumed by Craft in defendant’s tavern could not have contributed to his intoxication in whole or in part at the time he received his injuries. After Bobowski was qualified as an expert witness, he was asked a series of hypothetical questions dealing with the oxidation rate of alcohol in a male 5'9" in height and weighing approximately 155 pounds who had consumed six to eight 12-ounce bottles of beer — each containing 15 milligrams of alcohol — from between 9 A.M. to 2 P.M. All the questions were objected to by plaintiffs’ counsel on the grounds that they lacked proper foundation, were irrelevant and immaterial. Eventually, Bobowski testified that the alcohol consumed in the Starlite Inn from between 9 A.M. and 2 P.M. would not have rendered Craft intoxicated; and that the alcohol originally consumed would have been oxidized, thus eliminated from Craft’s system at the time of the altercation in question. Plaintiffs moved that Bobowski s answers be stricken. This motion was denied by the court.

Plaintiffs argue that above-mentioned comment in opening argument by defendant was inflammatory and prejudicial. Therefore, the jury verdict and judgment thereon should be vacated.

The general rule is that an assignment of error based upon alleged prejudicial conduct of counsel centering upon statements made in argument to the jury will not be considered unless objection to the alleged prejudicial argument had been made in the trial court. There is a well recognized exception to this rule and it is that:

“If prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved thereon.” Belfield v. Coop, 8 Ill.2d 293, 313, 134 N.E.2d 249.

Since plaintiffs failed to object when the offending remark was made, the alleged error was waived unless it can be cognizable under the aforementioned exception. We find that it cannot.

The comment is not of such a character as to warrant the intervention by the trial court in the absence of an objection. The statement was not designed or calculated to inflame or turn the jurors against plaintiffs. Rather its purpose was to give the jury a preview of what defendant intended to establish as the proximate cause of Craft’s injuries.

Next, plaintiffs argue that prejudice to them was further compounded by defendant’s examination of Roberts and Craft concerning the purported relationship that existed between Craft and Myrtle Newell. Plaintiffs submit that the defendant failed to connect up his inquiries to relevant matters in issue and thus rendered all the testimony on this collateral matter incompetent.

All questions dealing with the collateral matter were propounded by counsel for defendant to Roberts and Craft during cross-examination. Plaintiffs made a timely and specific objection when defendant cross-examined Roberts concerning these collateral matters. The objection was properly sustained. When defendant was cross-examining Craft concerning this issue, plaintiffs again made a timely and specific objection; but defendant promised to connect up the evidence in question and the trial court permitted defendant to continue. In defendant’s case-in-chief, defense counsel inquired of one Carl Hixon, the bartender of the Starlite Inn, about prior meetings between Craft and Myrtle Newell that allegedly took place in the tavern. Plaintiffs failed to object to these questions.

Defendant failed to connect up the questions put to Craft concerning his affair in the course of the cross-examination. Moreover, defendant did not successfully connect up the subject matter to relevant facts in issue during his case-in-chief. However, in each instant plaintiffs failed to move at the appropriate time that the testimony be stricken. The rule is clear that when the offering counsel neglects to supply his connecting proof, the burden is on the objecting party to renew his objection by requesting that all the evidence dependent upon the connecting proof be stricken. (6 Wigmore on Evidence § 1871 (3d ed.).) Plaintiffs failed to utilize their remedy and this failure amounted to a waiver of any error relating to this matter.

Plaintiffs contend that defendant’s final argument was inflammatory, not based on evidence presented, and amounted to prejudicial error. The rule is that plaintiff on review of an adverse verdict cannot complain the closing argument by defendant’s counsel was prejudicial where no objection was made at trial and when the argument was not so inflammatory and prejudicial as to deteriorate the judicial processes. (Bruske v. Arnold, 44 Ill.2d 132, 254 N.E.2d 453.) The closing argument of defendant was not so inflammatory as to result in prejudice accruing to plaintiffs. Likewise, the plaintiffs objected only once during the course of the closing argument; that objection was sustained by the trial court, thereby remedying any error that might have existed.

Finally, we do not agree that the testimony of Dr. Bobowski was improper and should have been stricken. The witness, who has special knowledge, skiU, experience, training or education so that his opinion will aid the trier of fact in a specialized area which is beyond the competence of persons of common experience, may given an opinion based upon his expertise. (Pritchett v. Steinker Trucking Co., 108 Ill.App.2d 371, 247 N.E.2d 923.) While experts must be shown to have special knowledge or experience, the sufficiency of their qualifications is not an arbitrary matter but rests largely in the sound discretion of the trial court.

The opinion of an expert must be based upon facts found in the record. The expert’s opinion is not admissible when there is insufficient, undisputed physical evidence in the record to provide basic data needed for the application and principles of science or where the expert predicates his opinion upon matters not directly in evidence. Abramson v. Levinson, 112 Ill.App.2d 42, 250 N.E.2d 796.

The testimony concerning the meaning of certain blood alcohol levels are the proper subject matter for expert testimony and when relevant amount to significant evidence on a material issue in the case. Weaver v. Lovell, 128 Ill.App.2d 338, 262 N.E.2d 113.

In Merchants National Bank v. Elgin, J. & E.Ry.Co., 49 Ill.2d 118, 273 N.E.2d 809, the supreme court held that it was proper for the trial court to admit an expert opinion when it dealt with an ultimate issue of the case. The court reasoned that in a case when it was necessary for an expert witness to testify the trier of fact need not nor is required to accept the opinion of the expert concerning the matters testified to. It is certain that the expert testimony dealing with ultimate issues does not usurp the function of the trier of fact.

In the case at bar, the trial judge exercised his discretion concerning the substance of the testimony of Dr. Bobowski. The court found that there was a presence of technical data, the interpretation of which was beyond the normal competency of the average juror. Likewise the trial court found that the expert had a special knowledge or skill which enabled him to evaluate the data presented at the trial and render it useful to the jury. It is also certain that the opinion of the expert was predicated upon admissible evidence found in the record — evidence that was supplied through counsel's foundation questions. Likewise the witness’ ultimate opinion concerning the rate of oxidation of alcohol in the blood stream of the average man as hypothesized in the question and how it related to Mr. Craft was subjected to the rigors of cross-examination and the ultimate scrutinies of the jurors who, under the rationale of Merchants National Bank, are free to accept or reject the opinion testimony.

Accordingly, the judgment of the circuit court of Vermilion County is affirmed.

Judgment affirmed.

SMITH, P. J., and SIMKINS, J., concur.


text:
    Terry D. Lewis, Plaintiff-Appellee, v. William Palmer, Defendant-Appellant.
    (No. 12271;
    Fourth District
    July 3, 1974.

      Greaves and Erwin, of Champaign (Sam Erwin, of counsel), for appellant.
    Hugh Finson, of Monticello, for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This is an appeal from an order denying defendant’s motion to open a judgment by confession on a promissory note.

On May 19, 1971, defendant executed a promissory note in favor of plaintiff. The first installment of $1000 became due on September 20, 1972. On December 19, 1972, plaintiff obtained a judgment by confession against defendant as a result of an alleged failure to pay the first installment.

On December 26, 1972, defendant filed a motion to open the judgment by confession. In support of the motion, defendant’s amended affidavit and an affidavit of Diane McMahan were filed along with defendant’s proposed answer. Plaintiff filed a counteraffidavit. After a hearing on the motion, the trial court denied the motion.

Defendant’s affidavit states he was notified prior to September 20, 1972, that plaintiffs interest in the promissory note had been transferred to Duane Lewis, a minor, pursuant to a written agreement between plaintiff and Diane McMahan, parents of the minor. Defendant claims he made several efforts to locate plaintiff and arrange payment of the installment before its due date. He also states he was told by plaintiff that his intentions were not to honor the agreement between himself and Diane McMahan, but instead to appropriate the proceeds for his own use. Plaintiff then refused to accompany defendant to the depository named in the agreement for the purpose of creating the account for tire minor child. Defendant alleges that he was, and is, prepared, willing and able to make his payment in accordance with the agreement between the plaintiff and Diane McMahan, but was prevented from doing so by plaintiff.

The agreement between plaintiff and Diane McMahan stated in relevant part:

“That the Four Thousand Dollar ($4000.00) obligation of WILLIAM PALMER to TERRY D. LEWIS * * * shall be, the property of DUANE LEWIS and upon its repayment, deposited in a savings account * * * in the name of DUANE LEWIS, a minor, for his use and benefit * * * [but the minor’s parents] shall ” * * have the privilege of withdrawing said funds on their joint signatures.”

The agreement was signed by Terry Lewis and Diane McMahan.

Diane McMahan’s affidavit acknowledged the making of an agreement between herself and plaintiff regarding defendant’s promissory note. She stated that prior to September 21, 1972, defendant had requested instructions regarding payment of the note after telling her plaintiff had advised him that he intended to keep the proceeds of the note as his own property. Diane McMahan acknowledged that defendant had deposited a check with her for $1200 made payable to Diane McMahan and Terry D. Lewis. The check was never negotiated. Finally, Diane McMahan’s affidavit stated that plaintiff came to her home in October 1972 and told her defendant had sought him out concerning repayment of the note and establishment of the account for the minor child as called for in the agreement. Plaintiff told the affiant that he did not wish to make such arrangement, and that he wanted the money paid to himself because it was his money.

Plaintiff filed a counteraffidavit denying proper tender by defendant and denying that he, plaintiff, ever had any intention to appropriate any of the proceeds of the note in question to his own use. He stated he intended to comply with the agreement executed between himself and his former wife. Finally, he denied knowledge of a deposit with Diane Mc-Mahan of a check for $1200, drawn by defendant and made payable to Terry Lewis and Diane McMahan.

The procedure for opening a judgment by confession is set forth in Supreme Court Rule 276 (Ill. Rev. Stat. 1973, ch. 110A, 276). That Rule provides in part as follows:

“If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff’s demand, the court shall set the motion for hearing. * * * If, at the hearing upon the motion, it appears that the defendant has a defense on the merits to the whole or a part of the plaintiff’s demand and that he has been diligent in presenting his motion to open the judgment, the court shall sustain the motion either as to the whole of the judgment or as to any part thereof as to winch a good defense has been shown, and the case shall thereafter proceed to trial upon the complaint, answer, and any further pleadings which are required or permitted.”

On a motion to open a judgment by confession, the court may not make an inquiry into the facts of the cause. All allegations of defencdant are to be accepted as trae. (Scheinfeld v. Muntz TV, Inc., 67 Ill.App.2d 8, 214 N.E.2d 506.) The motions and affidavits must be examined carefully to see if a prima facie defense is pleaded. They must also be scrutinized to determine whether purported facts set forth in them would be admissible as evidence at a trial on the merits. National Boulevard Bank v. Corydon Travel Bureau, Inc., 95 Ill.App.2d 281, 238 N.E.2d 81.

No issue as to defendant’s diligence is present in this case. Therefore, we must carefully examine defendant’s motion and the accompanying affidavits to determine if he has pleaded a prima facie meritorious defense. According to the dictates of Supreme Court Rule 276, when a prima facie meritorious defense is raised with diligence by defendant’s affidavits, the court has no discretionary authority but must open the judgment and proceed to trial. Kuh v. Williams, 13 Ill.App.3d 588, 301 N.E.2d 151.

The instrument upon which suit was brought was made payable to Terry D. Lewis or order. Order paper is negotiated by delivery with payee’s endorsement under section 3 — 202(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, fl 3 — 202(1)):

“§ 3 — 202. Negotiation. (1) Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary indorsement; if payable to bearer it is negotiated by delivery.”

It is contemplated by section 3 — 202 that transfers not meeting the requirements of negotiation are assignments. The instrument upon which plaintiff brought his action was not endorsed. Therefore, if it was transferred, the transfer must have been by assignment.

“Delivery” is defined in section 1 — 201(14) of the Uniform Commercial Code to mean voluntary transfer of possession. Anderson on the Uniform Commercial Code (2d ed. 1971), vol. 2, § 3 — 202:37, indicates delivery may be either actual or constructive. In this same volume, Anderson states:

“Delivery of a written assignment of an instrument has been held effective as a constructive delivery without delivery of the negotiable instrument itself, especially where the assignment established that the assignor held the instrument for the benefit of the assignee as well as for his own benefit.” Anderson, § 3 — 202:38.

Defendant’s affidavits allege the written agreement between plaintiff and Diane McMahan amounted to an assignment of defendant’s note to Diane McMahan and plaintiff as cotrustees for the benefit of Duane Lewis. It is implicit in this argument that the transfer requirement was fulfilled by contractive delivery. Whether, in fact, this is the result can only be determined at a trial on the merits of the case.

Defendant claims he had notice of the purported assignment. In an attempt to fulfill his obligation on the note, he attempted to pay it to the assignees when due. The maker of a negotiable instrument contracts to pay it according to its terms. Section 3 — 413(1) of the Uniform Commercial Code provides:

“§ 3 — 413. Contract of Maker, Drawer and Acceptor. (1) The maker or acceptor engages that he will pay the instrument according to its tenor at the time of his engagement or as completed pursuant to Section 3 — 115 on incomplete instruments."

If there was an assignment of this instrument, Terry Lewis would be in possession of the instrument in his capacity as co-trustee. If no assignment was made, he held the instrument as payee. Defendant has alleged he stood ready, willing and able to pay the instrument to plaintiff in his capacity of cotrustee. The trial court improperly resolved the issue of plaintiff’s position in relation to disposition of the proceeds on the affidavits. That should only be determined after a trial on the merits.

Tender of payment operates as a discharge from liability under section 3 — 601(1) (b) of the Uniform Commercial Code against a holder. The Code’s requirements of tender are set forth in section 3 — 604 as follows:

“§ 3 — 604. Tender of Payment. (1) Any party making tender of full payment to a holder when or after it is due is discharged to the extent of all subsequent liability for interest, costs and attorney’s fees.
# # *
(3) Where the maker or acceptor of an instrument payable otherwise than on demand is able and ready to pay at every place of payment specified in the instrument when it is due, it is equivalent to tender.”

The trial court resolved the issue of tender against defendant on the hearing on the affidavits. As with the previous finding concerning plaintiff’s actions, this matter should have been resolved at a trial on the merits rather than by the affidavits.

Section 1 — 203 of the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, jf 1 — 203) states:

“Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.”

“Good faith” is further defined by section 1 — 201(19) of the Uniform Commercial Code to mean honesty in fact in the conduct or transaction concerned. If defendant’s affidavits are true, he has acted in good faith and with diligence in trying to fulfill his obligation as he saw it. Under the facts of this case, we find the motion and affidavits sufficient to raise a prima facie meritorious defense.

The denial of the motion to vacate the judgment is reversed and this cause is remanded to the circuit court with directions to vacate the judgment and for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded with directions.

SMITH, P. J., and KASSERMAN, J., concur.


author: Mr. JUSTICE EBERSPACHER Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Ruby M. Young, Petitioner-Appellant, v. Louis Young et al., Defendants-Appellees.
    (No. 73-316;
    Fifth District
    June 18, 1974.

      G. MORAN, P. J., dissenting.
    Miller & Pfaff, of Salem, for appellant.
    Lackey & Lackey, of Centralia, for appellees.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Marion County denying appellant’s, Ruby M. Young’s, petition to probate a document purported to be the will of the deceased, Roger C. Young.

The issue before this court is whether or not a document, which does not include an attestation clause, can be admitted to probate when none of the subscribing witnesses are able to testify either that it was signed by the decedent in their presence or that the signature of the decedent was acknowledged at the time they, the witnesses, affixed their signatures to it.

Section 43 of the Probate Act (Ill. Rev. Stat., ch. 3, par. 43), provides that:

“Every will by which any real or personal estate is devised or bequeathed shall be reduced to writing, shall be signed by the testator or by some person in his presence and by his direction, and shall be attested in the presence of the testator by two or more credible witness.”

The requirements of the foregoing provisions are circumscribed by section 69 of the Probate Act (Ill. Rev. Stat, ch. 3, par. 69), which provides in part that:

“When each of 2 attesting witnesses to a will testifies before the court (a) that he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or that the testator acknowledged it to the witness as his act, * *

This court is asked to determine whether or not.the requirements contained in the aforementioned provisions of the Probate Act are mandatory. This issue was resolved in the case of In re Will of Lagow, 391 Ill. 72, 62 N.E.2d 469, wherein the supreme court stated that the law then in effect (Ill. Rev. Stat. 1943, ch. 3, par. 194), which is the present section 43 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 43):

“* ** requires as essential to the execution of a valid will that the testator sign the will in the presence of the attesting witnesses or that he acknowledge it before them as his act and deed. This provision of the statute is mandatory, and while it is not necessary that a testator both sign and acknowledge in the presence of the attesting witnesses, it is indispensible to the will’s validity that he execute the same in the witnesses’ presence by one or the other of such methods.” (391 Ill. at 78.)

The court further stated:

“Courts are not authorized to dispense with any of the formalities which the legislature has prescribed for the execution of a valid will. No method of executing a will, other than that provided by statute, can be adopted, although in the opinion of the court it would be just as effective as that provided by the statute.” (391 Ill. at 79.)

In view of the foregoing this court concludes that the requirements embraced in section 43 and section 69 of the Probate Act are mandatory.

The instrument presented for probate was typed on the letterhead of “Roger C. Young, Real Estate Broker, 222 North Broadway, Salem, Illinois.” After its final provision was typed the word “Signed” followed by the handwritten signature and words “Roger C. Young, Salem, Illinois.” This was followed by the typed words “this 16th day of March 1946.” To the lower left was the typed word “Witnesses” under which appeared the signatures of Mrs. Walter Atkins, Mr. Howard Hunter and Edgar B. Kagy, in that order. On the petition of the widow Ruby M. Young, who was by the instrument appointed “Administrator without bond,” to admit the instrument to probate, those three persons were called to testify.

The first witness, Mrs. Walter Atkins, on direct examination testified that she had seen the document before; that her name was attached thereto and that she signed “as a witness.” She further testified in response to the inquiry, ‘Til ask you if you remember whether or not Mr. Roger C. Young signed that document?” that “I didn’t see him.” She further testified that she did not know Mr. Young’s signature and answered “Yes” to the inquiry, “The only thing you recall is you have seen that document and that’s your signature?” She was never asked whether the instrument bore Mr. Young’s signature at the time she signed it, nor was she asked if Mr. Young acknowledged a signature on the instrument to be his. She was not cross-examined.

The second witness, Mr. Howard Hunter, on direct examination testified that he was acquainted with Mr. Young during his lifetime. His direct examination follows:

“Q. I will hand you a document and ask you to examine it.
A. That’s my signature.
Q. Have you ever seen that document before?
A. I signed it over at the funeral home.
Q. I’ll ask you who else signed it while you were there?
A. Nobody while I was there. He just brought it in and asked me to sign it. He lived on North Broadway and I was working there at McMackin’s Funeral Home and he brought it in and wanted to know if I’d sign it and I said, yes. I signed it and he left and as far as I know he went home.
Q. Did he say that he had signed it?
A. To the best of my knowledge it was signed.
Q. What other names were on there?
A. I don’t remember any other names.
Q. Do you know whether or not you were the first to sign as a witness?
A. I can’t say whether I was or not but it seems like, to the best of my knowledge, I was.”

His cross-examination follows:

"Q. Did Mr. Young ever tell you that was his signature?
A. No. I took it for granted if his signature was on it at the time that it was his because he brought it in for me to sign. I think he said he was leaving on a two weeks trip.
Q. The signature was there when you first saw it.
A. To the best of my knowledge it was. I’m not saying it was or wasn’t. I don’t really know.”

From the fact that his signature did not appear as the first, although he thought he was the first to sign and the fact that he was not positive that Mr. Young had signed the instrument before it was brought to him, we can understand how the trial court who heard and saw the witness would conclude, as did the witness himself, that he didn’t “really know” whether Mr. Young’s signature appeared on the instrument at the time the witness first saw it, and that the witness’s actual knowledge of the events and circumstances surrounding the affixation of his own signature was very limited on the essential points.

The third witness, Edgar Kagy, after identifying himself by name was asked and answered on direct examination as follows:

“Q. I’ll hand you this document and ask you who did you see sign that document?
A. I didn’t see anybody only Roger Young.
Q. Did you see Roger Young sign the document?
A. Yeah, he signed it.
Q. In your presence?
A. Well, I forgot all about it.
Q. But you did see Mr. Roger Young sign it?
A. That’s right and that’s my initial.
Q. I’ll ask you whether or not you saw Mrs. Atkins sign this as a witness?
A. No, I did not.
Q. Or anyone else?
A. No, I did not.
Q. Who was present when you signed for Mr. Young.
A. I can’t honestly answer that.
Q. Where was that, at the funeral home?
A. No.
Q. But you were present when Mr. Roger Young signed it?
A. Yes sir.”

On cross-examination, after testifying that he did not remember where he was at the time of signing his name on the instrument, he was asked, and answered:

“Q. Now then, do you remember whether or not Roger Young had already signed this when you signed it or whether you signed it first?
A. No sir, I can’t answer that.
Q. Your name appears to be on the bottom of three lines.here. A. Right.
Q. Do you know whether or not the other two people had signed that before you did?
A. All I know, that’s my signature.
Q. Did you see Roger Young sign this?
A. No, it’s been so long I’ve forgot.
Q. Is that your answer, you don’t know whether or not.
A. No, I do not.
Q. Were Mrs. Atkins and Mr. Hunter there with you at the time you signed your name to this?
A. No, they wasn’t.
Q. To the best of your recollection were you and Mr. Young the only people that were there at that time?
A. To the best of my recollection, yeah.”

On further direct examination, the witness was asked and answered:

“Q. Mr. Kagy, who brought this to you to be signed?
A. You know, it’s been so long I forgot about ever signing it but that’s my handwriting there. The rest of it I don’t know.
Q. Do you know whether or not that is Mr. Roger C. Young’s handwriting.
A. It looks like it.”

On recross, the witness was asked and answered:

“Q. So that I understand one of your answers, are you saying that all you really know about this case is that’s your signature.
A. That’s my signature.
Q. That’s all you remember about it?
A. Yes.”

From this testimony, we believe the trial court who heard and saw the witness, could conclude as did the witness himself, that all the witness remembered of the events and circumstances surrounding the affixation of his signature was that the instrument bore his signature.

At this time the court indicated that there was insufficient evidence and that there was not compliance with the statutory provisions to admit the will to probate. The petitioner requested a continuance of one week, which was granted.

At the continued hearing Edgar Kagy was again called and testified as follows:

“Q. Mr. Kagy, you testified in this case last week, did you not?
A. Yes.
Q. And you testified regarding certain documents. I hand you this document which purports to be the last will and testament of Roger Young, which is dated March 18, 1946, and I will ask you to tell the Court if that is the same document you testified about last week.
A. I will say that is my signature.
Q. Is that the same document you looked at last week?
A. That I can’t say. It may bé. I believe it is.
Q. These are the same documents you looked at last week?
A. Yes.”

The petitioner, Ruby Young, was then called and testified that she first saw the instrument “when they told me I had a right to go over to the Salem bank and look at my box” and that she had never seen the instrument before that time. She further testified that it bore the signature of Roger C. Young, a matter that is not disputed in this cause. The order denying probate was then entered, and this appeal perfected.

Appellant contends that the purported will should not be denied probate merely on the ground that the witnesses cannot remember whether it was properly executed. As authority for this proposition appellant cites Conway v. Conway, 14 Ill.2d 461, 153 N.E.2d 11. In that case our supreme court stated:

“* * * if the attestation clause shows on its face that all the forms required by law have been met, and the signatures on the instrument are admittedly genuine, the presumption of due execution must prevail unless clear and affirmative proof shows the contrary.” (14 Ill.2d at 466-467.) (Emphasis added.)

In 94 C.J.S. Wills 5 188(c) (3), at page 1019, the following statement is made:

“Thus, a mere request by the testator to witnesses to attest his will is a sufficient acknowledgment of his signature under a statute which requires signing by the testator in the presence of the witnesses or an acknowledgment by him that it is his act or deed, * # #»

As authority for the above proposition two cases are cited: Harp v. Parr, 168 Ill. 459, 48 N.E.2d 113, and Hobart v. Hobart, 154 Ill. 610, 39 N.E. 581. Both of these cases are distinguished from the instant case by the fact that in each of these cases an attestation clause was contained in the purported will. From an examination of these and other cases regarding the presumption of validity of a will which bears the genuine signature of a purported testator and witnesses, it is apparent that such presumption cannot be relied upon to make a prima facie case for admission to probate in the absence of an attestation clause. In re Estate of Willavize, 21 Ill.2d 40, 171 N.E.2d 21; In re Estate of Elkerton, 380 Ill. 394, 44 N.E.2d 148; In re Estate of Russell, 130 Ill.App.2d 839, 264 N.E. 2d 269; In re Estate of Hart, 79 Ill.App.2d 134, 223 N.E.2d 466.

In the instant case, where the purported will does not contain an attestation clause, the proponent of the will has the burden of proving its proper execution by other evidence. (In re Estate of Willavize, 21 Ill.2d 40, 171 N.E.2d 21; In re Estate of Thomas, 6 Ill.App.3d 70, 284 N.E.2d 513.) The appellant has furnished no such evidence. Here there was no positive testimony that the will was signed in the presence of any of the witnesses, nor is there testimony that at any time Roger C. Young acknowledged his signature to any of the witnesses; nor, in our opinion, can such signing in the witnesses’ presence or acknowledgment be reasonably inferred from the evidence presented. There is no attestation clause and we cannot dispense with the required formalities under In re Will of Lagow.

In the absence of such evidence the circuit court refused to admit the purported will into probate. We find no reason to disturb this order. The order of the circuit court denying the admission into probate is therefore affirmed.

Order affirmed.

CREBS, J., concurs.

Mr. PRESIDING JUSTICE GEORGE J. MORAN

dissenting:

The will in question reads as follows:

“ROGER C. YOUNG
Real Estate Broker
222 North Broadway
Salem, Illinois
March 16, 1946
I, Roger C. Young being of sound mind make this my last will and testament as follows:
I bequeath to my son Louis H Young One Dollar, to my daughter Dorothy Floella Young house and lot together with household goods located at 509 South Jefferson St. Salem, Illinois, to my daughter Mrs. Margaret Elizabeth Erwin house and lot located at 508 South Washington St. Salem, Illinois and to my other daughter Mrs. Agnes Evelyn McCullah house and lot located at 512 South Washington St. Salem, Illinois.
All other property both real and personal I bequeath to my beloved wife Ruby Muriel Young consisting of Royalties, lands in Illinois and Texas, Bonds if any, Postal Savings, Cash in Banks and all interest held in houses and other Real Estate owned by me.
I make the above bequests of my own free will and appoint my wife Ruby Muriel Young Administrator without bond.
(Signed) Roger C. Young
Salem, Illinois
this 16th day of March, 1946
Witnesses
Mrs. Walter Atkins
Mr. Howard Hunter
Edgar B. Kagy”

Because there was no formal attestation clause and none of the witnesses could remember whether or not the will was signed by the testator when they signed it, the majority holds the evidence was insufficient to prove the will was signed by the testator in the presence of two of the witnesses or that he acknowledged it to them as his act.

This rationale does not follow the majority rule in this country and particularly does not follow the rule in Illinois.

57 Am. Jur. Wills § 867 (1948), at page 577, reads:

“Although there is some authority to the contrary, the better rule is that a presumption of due execution may arise on proof of the genuineness of the signatures of the testator and the attesting witnesses, notwithstanding the attestation clause of the will is incomplete or defective in failing to recite the observance of some formality required by statute in the execution of wills. In fact, according to many authorities, the due and proper execution of a will may be presumed on proof of the circumstances stated above, even though there is no attestation clause, as where the witnesses are merely indicated to be such by the word ‘witnesses’ appended to their signatures.
* * *

In Mead the supreme court held that a will in the handwriting of the testator and found among his papers, duly signed by him and attested by witnesses who wrote the word “witness” after their names, was entitled to probate, even though there was no formal attestation clause and the witnesses, although they remembered signing the will, did not recollect whether they signed the will at the testator’s request and in. his presence and the presence of each other or what was said at the time of the transaction, where other evidence clearly established the genuineness of the will and signatures and that the testator was of sound mind and memory. The genuineness of Young’s will, the signatures thereon and the fact that Young was of sound mind and memory are undisputed.

Mead was quoted with approval in the case of In re Will of Hamilton, 408 Ill. 187, where the court stated that “the fact that witnesses cannot remember the details concerning the form of the will is not in itself suspicious after a lapse of 17 years.” (408 Ill. 187, 193.) In the present case there was a lapse of 27 years.

The majority interprets the case of In re Estate of Willavize, 21 Ill.2d 40, to mean that where a will does not contain a complete attestation clause, there is no presumption in favor of its proper execution. The Willavize case actually held that there is a presumption in either case, but where the attestation clause is complete, the presumption is even stronger. The supreme court said, at page 44:

“It is, of course, a well-established rule that every reasonable presumption will be indulged in in favor of the execution and attestation of a will. This is an even stronger presumption in those instances where the will was apparently executed in due form and the signatures are admitted to be genuine. [Citation.]”

More v. More, 211 Ill. 268, involved a case where the supreme court reversed a circuit court ruling that there was insufficient evidence to admit a will to probate. The will was signed by the testator and witnesses as follows:

“George More. (L.S.)
Witnesses: Wm. Fuller, of Clinton, Illinois.
Jas. A. Wilson, Clinton, Illinois.”

Both witnesses predeceased the testator. The proof disclosed that the signature of the testator and the witnesses were genuine; that the body of the will was in the handwriting of the testator; that the word “witnesses” was also in the handwriting of the testator; and that the testator transacted his business competently.

Appellee contended there was no proof that testator was of sound mind and memory when he signed the will or that the witnesses signed in the presence of each other or in the presence of the testator or at his request. The supreme court said at pages 271-72:

“Out of the evidence in this case the presumption arose that the witnesses duly attested the will in the presence of the testator. If a perfect and formal attestation clause, reciting that all statutory requirements had been complied with, had been signed by the attesting witnesses, the presumption of regularity and compliance with statutory requirements would have arisen, and warranted the admission of the will to probate. . * * * It is not indispensable, however, that the witnesses shall sign a formal clause of attestation. # * « The attestation clause may consist of a single word, as witness,’ ‘attest’ or ‘test,’ or there may be no words at all. * * * In case of the death of the witnesses to a will which on the face thereof appears to have been regularly executed and is shown to bear the genuine signatures of the testator and the witnesses, compliance with the statutory requirement is to be presumed, in the absence of express recitals to that effect. ***
The act of attestation of a will is not merely to witness the mere fact that the testator signed the will or acknowledged that he had signed the same, but the attention of the witnesses, is called, by the act of attestation, to the mental, condition of . the testator and as to whether he is possessed of a sound, disposing mind, and, therefore, if the will appears on the face thereof to have been duly executed and it is proven that the signatures thereto are the genuine writing of the maker and the witnesses, if the attesting witnesses be dead an inference arises, from the mere fact of attestation, that the witnesses believed that the testator possessed testamentary capacity at the time of the execution of the will, though there be no formal recital to that effect. *** This inference fairly arose in the case at bar, and was supplemented by the testimony which disclosed that the deceased, at the time of making the will, transacted, intelligently, ordinary business affair's of life. It was therefore established prima facie by the proof, and the inferences and presumptions legally arising therefrom, that said George More signed the said will in the presence of the said witnesses; that they signed it as witnesses in the presence of the testator and in the presence of each other as attesting witnesses; that they believed him to be of sound and disposing mind and that he in fact had sufficient mental capacity to execute a will.”

In my opinion this will should be admitted to probate.

       Mead v. Presbyterian Church, 229 Ill. 526, 82 N.E. 371, 14 LRA(NS) 255, 11 Ann Cas 426; German Evangelical Bethel Church v. Reith, 327 Mo 1098, 39 SW2d 1057; 76 ALR 604 (dictum). Anno: 76 ALR 622. ***"


author: Mr. JUSTICE CREBS

text:
    Dennis C. Stoeber, Plaintiff-Appellant, v. The Town of Stookey et al., Defendants-Appellees.
    (No. 73-328;
    Fifth District
    June 28, 1974.
    Bock and Stenger, of Belleville (Ralph T. Stenger, of counsel), for appellant.
    John M. Ferguson, of Belleville, for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of St. Clair County dismissing plaintiffs complaint for failure to state a cause of action.

Plaintiffs verified complaint sought to force the defendant to grant access to the sanitary sewer system for an eight-space mobile home park development under the same classification as a single residential or a single business customer. Defendant contended that the ordinances covering sewer extensions for newly developed subdivisions or commercial projects applied.

The real point in dispute is the interpretation of the Town of Stookey’s Ordinance No. 161. If it applies to the plaintiff, he is required to provide extensions to the sewer system rather than lateral connections which he seeks to make. The trial court held that plaintiff came under the terms of Ordinance No. 161. We agree.

This ordinance defines a subdeveloper as the owner, promoter, lessee, tenant and builder of any improvements to real estate and further provides that the subdeveloper of any subdivision, shopping center, commercial center or industrial plant site shall before conveyance by him, or operation or occupancy by such subdivider or his agents or tenants, install the sewer extensions.

It is the contention of plaintiff that since mobile home parks are not named in the ordinance they are not included. We hold that it is covered both as a subdivision and as a commercial center.

Numerous other contentions are made in the briefs. We have considered them, but see no reason to refer to them in this opinion.

As a matter of law, plaintiff is not entitled to the relief sought.

Judgment affirmed.

G. MORAN, P. J., and EBERSPACHER, J., concur.


author: Mr. JUSTICE CARTER

text:
    Wilbert Engelke et al., Plaintiffs-Appellees, v. Charles Moutell et al., Defendants-Appellants.
    (No. 73-419;
    Fifth District
    June 28, 1974.

      Thomas Gumbel, of Cohn, Carr, Korein, Kunin & Brennan, of East St. Louis, for appellants.
    Dailey and Walker, of Granite City, for appellees.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendants brought this appeal from an order of the Circuit Court of Madison County denying defendants’ motion to vacate a default judgment granting injunctive and money damage relief. The defendants’ motion was filed within 30 days after the entry of the default judgment.

Plaintiffs’ complaint was filed October 4, 1968. It set forth facts that plaintiffs and defendants were owners of adjoining tracts of land located in Madison County and that defendants had installed a culvert under the township road lying between plaintiffs’ and defendants’ properties causing surface water to be diverted onto plaintiffs’ property and to change the natural flow of the water from what it had been for many years prior thereto. On November 7, 1968, defendants through their attorneys moved to dismiss the case on the grounds that it failed to describe the course of natural drainage. This motion was denied on November 21, 1968, and the defendants were granted leave to file an answer or counterclaim within 15 days.

The case was placed on the non-jury docket call for July 17, 1969, but was continued to the September setting. It was not heard at the September setting, and no further action was taken until the case was again placed on the docket call on January 26, 1973, when plaintiffs’ counsel announced ready for trial and the case was assigned to Judge Merlin Hiscott.' Defendants’ attorneys were notified of this assignment.

On May 10, 1973, when the case was again placed on the non-juiy docket call, the attorney representing the defendants moved to withdraw as attorney for the defendants. The motion was granted and the clerk was ordered to notify defendants that they were without counsel and were allowed 30 days to procure counsel. The defendants were not notified prior to the above notice that any action was being taken in the case or that their attorney was withdrawing. On or about June 1, 1973, defendant Charles Moutell received a notice from the clerk of the circuit court that his attorney had withdrawn, as the court had allowed his motion to withdraw, and he was grante 1 30 days to procure new counsel. The other defendant, Arthur Miller, received no such notice at any time.

On July 18, 1973, the defendants’ attorney filed a written motion to withdraw as attorney for the defendants, apparently to conform to the oral motion previously made. Without any motion filed by the plaintiffs or any appearance by plaintiffs’ attorneys or any notice to the defendants and the case not having been set for trial, the court on its own motion on July 18, 1973, found defendants in default for not having filed an answer or other adverse pleading. The court further ordered the Clerk to set the matter for default hearing and to notify the attorneys for the plaintiffs and each of the defendants. The court order of July 18, 1973, reads as follows:

“And now on this date, July 18, 1973, Motion to Dismiss, which is really a motion to withdraw, is moot. Same motion was allowed May 10, 1973. The Court finds the defendants in default, having never filed an answer or other adverse pleading. Clerk to set for default hearing and notify Maurice Dailey. Charles E. Moutell and Arthur Miller.
/s/ Merlin G. Hiscott
Judge”

Notwithstanding this order to give notice, the court held a default hearing on the following day, July 19, 1973, without proper notice to the defendants after which he found in favor of the plaintiffs and entered judgment in accordance with a prayer for relief in the complaint. There was no notice that the case was about to be set for trial or that the defendants were in default by reason of their attorney’s failure to file an answer. Defendant Miller never did receive notice of any type from the court, but he did receive notice of an entry or default from the office of the Clerk on or about July 31, 1973.

On July 24 the defendants were able to obtain counsel and a motion to vacate the default judgment was filed on August 3. This motion was heard on August 6, 1973, and denied by the trial court. The defendants’ motion to vacate included verified statements by the defendants and also set forth that they had a meritorious defense to the lawsuit. The defense was outlined to the court at the hearing on the motion.

Section 50(5) of the Civil Practice Act is applicable to this motion and order. That section provides:

“The court may in its discretion before final order, judgment or decree set aside any default, and may upon motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.” Ill. Rev. Stat. 1973, ch. 110, sec. 50(5).

Since the leading case of Widicus v. Southwestern Cooperative, Inc., 26 Ill.App.2d 102, it has not been necessary that the Appellate Court determine as a matter of law that the trial court exceeded or abused its discretion in denying the petition to set aside a default, but should instead determine whether justice is being done. This interpretation is in line with the liberal attitude of the courts in setting aside defaults entered in the same term that the motion is filed as compared with motions filed under section 72 of the Civil Practice Act filed more than 30 days but less than 2 years after entry of a default judgment. (Ill. Rev. Stat., ch. 110, sec. 72.) In Widicus the court commented on the proper application of the rule relating to the vacating of default judgments as follows:

“In view of the fact that the statute, as it now stands, does not contain the requirement that good and sufficient cause appear, we do not believe that a court must now categorically determine that a meritorious defense or a reasonable excuse be proven to justify setting aside a default. We believe that the discretion will be properly invoked if it is based upon principles of right and wrong and is exercised for the prevention of injury and the furtherance of justice. * * *
The question of whether or not a court should set aside a default judgment should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as is possible, determination of matters upon their merits. # e #
The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances and in our judgment a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship on the plaintiff to go to trial on the merits.” 26 Ill.App.2d at 108 — 109.

The attorneys for both sides discuss the same cases, Lynch v. Illinois Hospital Services, Inc., 38 Ill.App.2d 470, Adams v. Grace, 128 Ill.App.2d 69, and Sentry Royalty Co. v. Craft, 79 Ill.App.2d 410. All of the above cases upheld the rule, as set forth in the Widicus case as previously quoted. Plaintiffs attempt to distinguish the four cases from the present one in that the facts are different. However, it cannot be ignored that the court on its own motion in the present case on July 18, 1973, found the defendants in default, and ordered the “Clerk to set for default hearing.” The hearing was held the next day and the court awarded money damages to all four plaintiffs and also issued an injunction against the defendants. It is difficult to understand what prompted the trial court to proceed to a default hearing the day after the default was entered, especially when the court’s order of default stated that the defendants were to be notified. After the case had been on file for almost 57 months, justice is not benefited by defaulting the defendants as was done in this case.

The plaintiffs indicate that the mistakes or errors of counsel will be imputed to the client. However, in Mieszkowski v. Norville, 61 Ill.App.2d 289, 296, the court stated, “Inadvertence of counsel should not necessarily be an excuse to vacate a judgment, but likewise, it should not necessarily be a bar to such relief.” We believe this to be the better rule, and the fact that defendants were not able to obtain counsel after their original attorney withdrew until the default was entered should not prevent them from presenting their defense. It does not appear that opening up the judgment will cause a hardship to the plaintiffs or put their position in danger. Further, the plaintiffs are really in no position to complain of delay. At any time after December 6, 1968, they could have informed the court that defendants had not filed an answer, but they waited until July 18, 1973.

The defendants’ motion of August 6, 1973, to vacate the default judgment and stay writ of injunction should have been granted. Therefore, the order of the Circuit Court of Madison County is reversed and remanded with directions to allow defendants to plead to plaintiffs’ complaint.

Reversed and remanded with directions.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    Dennis Conover, Plaintiff-Appellant, v. Cecil Smith et al., Defendants-Appellees.
    (No. 73-113;
    Third District
    July 18, 1974.

      James Kellstedt, of Kellstedt & Young, of Peoria, for appellant.
    Clifford Schneider, of Davis, Morgan & Witherell and R. Michael Henderson, of McConnell, Kennedy & McConnell, of Peoria, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Plaintiff Conover in 1970 sued defendant Smith, driver of a car in which Conover was a passenger, and defendant Rosa, whose car was involved in a collision with Smith’s car, for negligence and willful and wanton misconduct in causing him personal injuries. The case came to trial in December 1972 and after 3 days of trial a mistrial was declared on December 21, 1972 because plaintiff testified that defendant’s “man” who took his statement identified himself as an insurance adjuster.

A new judge was assigned to the case and he scheduled a pre-trial conference for February 13, 1973. Though given notice, plaintiff’s counsel failed to appear on February 13, 1973. At that time one of the defendants made an oral motion that the cause be dismissed as a sanction for failure to appear. The judge obliged and dismissed the case with prejudice. This is essentially what this appeal is all about. (A mountain of motions to dismiss appeal for various non-jurisdictional defects have been presented to this court. Defendants have again questioned the jurisdiction of this court for appellant’s violation of various rules and have asked that this appeal be dismissed. We find nothing further compelling to reverse our prior orders in this regard. John Deere Co. v. Metzler, 51 Ill.App.2d 340, 366.)

A motion to re-instate was filed February 16, 1973, and set for hearing on February 28, 1973. On February 27, attorney for appellant gave notice that he would ask for a continuance on the grounds that he was on trial in the Circuit Court of Peoria County. On February 28 the court denied the motion to continue, denied the motion to re-instate and again dismissed the suit. On March 30, appellant moved to vacate the order of February 28 and requested re-instatement of the case. An affidavit attached shows that counsel was in fact engaged in trial on February 28; one of defense attorneys in the instant case opposed him in the Peoria case. The trial court denied the March 30 motion on the ground that it had no jurisdiction — that more than 30 days had elapsed since the order of February 13. Plaintiff then moved this court for leave to appeal and on May 22, 1973, after a plethora of objections, we entered an order granting leave to appeal. A cause of delay since that time was the refusal of the original trial judge to certify the transcript of proceedings on the ground that no appeal could be had from his order declaring a mistrial.

The pre-trial conference is a technique to promote the disposition of litigation by cooperation and agreement. The purpose of sanctions of Supreme Court Rule 219(c) is to coerce this cooperation rather than to dispose of litigation as a form of punishment. The record in the instant case fails to show any act on the part of the plaintiff to warrant so drastic a punishment. Jancauskas v. Tow Motor Corp., 126 Ill.App.2d 289.

The dismissal of a party’s cause of action is drastic punishment and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court’s authority. (Booth v. Sutton, 100 Ill.App.2d 410, 415-416.) We think the dismissal of plaintiff’s action in this case visited a harsh punishment on plaintiff for the acts and omissions of his counsel. In justice and with fundamental fairness, we think plaintiff should be given an opportunity to proceed on the merits of his action. Federenko v. Builders Plumbing Supplies, Inc., 123 Ill.App.2d 129, 137.

Appellant has also appealed from an order denying a continuance and thus requiring him to go to trial on December 19,1972. Immediately after the denial of the continuance he proceeded to trial without objection. Going to trial without objection after a denial of a motion for continuance is a waiver of the error, if overruling of the motion at the time it was made was an error. Kennedy v. Neeves, 258 Ill. 24; Boone v. A’Hern, 98 Ill.App. 610, 616.

While an order declaring a mistrial is not a final and appealable order (Smock v. Williamson, 80 Ill.App.2d 218, 219), on an appeal from a final judgment, the entire record is brought up for review and correction of any erroneous action of the court below which is properly preserved, where necessary to do justice between the parties and provided a separate appeal did not lie from such prior order or decision. (2 I.L.P. Appeal and Error, Sec. 651; 5 C.J.S. Appeal and Error, sec. 1491.) The complete record in the case has been filed with this appeal and we know of no reason why this court cannot review the entire record. It often becomes necessary, when a record is brought to a court for review, to review the entire record to do justice between the parties in the cause. (Stenwall v. Bergstrom, 398 Ill. 377, 382; Biagi v. O'Connor, 18 Ill.2d 238, 241.) Since this case must be tried again and the question is likely to arise again we believe that the issue of the mistrial should be reviewed by this court.

The attorney representing defendant Smith, in cross-examination of plaintiff referred to a statement taken by “a man and a lady” who interviewed plaintiff at his house regarding the accident. The cross-examination referred to various questions and answers given and was an attempt to impeach the plaintiff. On re-direct examination in order to show the interest of the “man” the following occurred:

“Q. * * * a couple of people came to your house. Did you invite them there?
A. No Sir. I didn’t.
Q. And was the man a professional adjuster or investigator?
A. I don’t know, Sir.
Q. Did he tell you?
A. He said he represented an insurance company.”

Thereupon, after arguments, a mistrial was declared.

As was stated in Pinkerton v. Oak Park National Bank, 16 Ill.App.2d 91, 99-100, "There has, however, existed and has continued to develop an exception to the general rule about the admissibility of evidence relating to insurance where the evidence was introduced for the purpose of showing the credibility of a witness or the origin of a statement used for impeachment purposes.”

Here, the defendant Smith sought to take advantage of an alleged impeaching statement prepared and obtained by an agent of the insurer. The identity of the person preparing the statement, the nature of his employment, and by whom employed became material for the purpose of showing his interest, if any, in the litigation. So, in this case, on redirect examination, where upon cross-examination an attempt had been made to impeach the plaintiff by statements taken by an employee of an insurance company, we see no prejudice in plaintiff’s counsel pressing the plaintiff for a statement as to what the man taking the statement had told him as to who he was representing, as that would properly go to the validity and weight of the statement used for impeaching purposes. The plaintiff’s right upon re-direct to have the witness identify the man who obtained the statement is well established. Pinkerton, supra; Seyferlich v. Maxwell, 28 Ill.App.2d 469; Sphatt v. Pulley, 38 Ill.App.2d 229; Burnett v. Caho, 7 Ill.App.3d 266, 273; Insurance Non-disclosure; the “Hush, Hush” game, Robert G. Notman, 53 I.B.J. 896, 899, 901; Tir v. Shearn, 2 Ill.App.2d 257.

Under the facts here presented we are of the opinion that the trial court abused its discretion.

Reversed and remanded with directions to reinstate the cause for further proceedings.

SCOTT, P. J., and STOUDER, J., concur.

       It is fair to state that the matter was inadverently not scheduled in the attorney’s office schedule. He suffered from illness and went home at noon on that day. There appears no deliberate flaunting of the court’s order.


author: Mr. JUSTICE ALLOY

text:
    James L. McCullough et al., Plaintiffs-Appellees, v. Frank A. Tomaich et al., Individually and d/b/a Tomaich's Tavern, Defendants-Appellants.
    (No. 73-141;
    Third District
    July 18, 1974.
    Sidney Karasik, of Chicago, for appellants.
    Timothy O’Brien, of Horwitz, Anesi & Ozmon, of Chicago, for appellees.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of WiH County denying a motion to dismiss an action filed under the Illinois Dram Shop Act (Ill. Rev. Stat. 1967, ch. 43, § 135).

Plaintiff James L. McCullough, alleging that on September 23, 1966, he was shot and injured by an intoxicated person, instituted on September 5, 1967, an action against defendants under article VI, § 14, of the Liquor Control Act (Ill. Rev. Stat. 1967, ch. 43, § 135) in the Circuit Court of Will County. The original complaint sought recovery from defendants only for injuries sustained by James McCullough as a result of the incident, but on February 25, 1971, plaintiff was given leave to amend the complaint so as to also sue defendants for alleged loss of means of support sustained by McCullough’s wife and three minor children resulting from his injuries. An additional count seeking reimbursement for medical and hospital expenses incurred by the McCulloughs under the Family Expense statute (Ill. Rev. Stat. 1967, ch. 68, § 15) was also permitted to be filed. Defendants unsuccessfully resisted such amendments on the ground that such additional matters had not been pleaded prior to the 1-year period limited by the Liquor Control Act for the commencement of actions thereunder. (Ill. Rev. Stat. 1967, ch. 43, § 135). The circuit court made the requisite findings for allowance of an interlocutory appeal under Illinois Supreme Court Rule 308, and we later entered our order granting defendants the right to proceed with their appeal from the order allowing the filing of the contested amendments to the plaintiff’s complaint.

The sole issue presented to us for determination is whether the amended complaint, adding, as it does, further causes of action under the Liquor Control Act and for reimbursement for medical and hospital expenses incurred by the McCulloughs as a result of James McCullough’s injuries, relates back, for the purpose of considering the effect of the time limitation for filing the amendments, to the time of the filing of the original complaint, or whether die amendments are barred as not having been instituted within the requisite 1-year period subsequent to the accrual of the causes of action.

Section 14 of Article VI of the Liquor Control Act (Ill. Rev. Stat. 1967, ch. 43, § 135) provided at the time of the incident in question in relevant part as follows:

“Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication, in whole or in part, of such person. * * * An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person resulting as aforesaid. The action, if the person from whom support was furnished is living, shall be brought by any person injured in means of support in his name for his benefit and the benefit of all other persons injured in means of support. However, any person claiming to be injured in means of support and not included in any suit brought hereunder may join by motion made within the times herein provided for bringing such action or the personal representative of the deceased person from whom such support was furnished may so join. * * * In no event shall the judgment or recovery under the Act for injury to the person or to the property of any person as aforesaid exceed $15,000, and recovery under this Act for injury to the person or to the property of any person as aforesaid exceed $15,000, and recovery under this Act for loss of means of support resulting from the death or injury of any person, as aforesaid, shall not exceed $15,000 for each person so injured where such injury occurred prior to July 1, 1956, and not exceeding $20,000 for each person so injured after July 1, 1956. Every action hereunder shall be barred unless commenced within one year next after the cause of action accrued.”

It will be seen that the statute provides, inter alia, for recovery by the injured person as well as for those who have been injured by virtue of loss of means of support. (See St. Clair v. Duovas, 21 Ill.App.2d 444, 158 N.E.2d 642, 645 (1st Dist. 1959).) As we read the statute, it is clear that there may be several causes of action arising on behalf of various people as a result of a single bodily injury. It has been held by our supreme court, however, that the maximum recovery from a defendant obtainable for one incident where one person has sustained bodily injury is an aggregate of, for injuries after July 1, 1956, $20,000, even though there may be several who have, as a result of such bodily injury, lost means of support. (Moran v. Katsinas, 16 Ill.2d 169, 157 N.E.2d 38 (1959).) Thus, whatever be our ruling herein, the maximum aggregate recovery by plaintiff, from each defendant, is $20,000.

Under the foregoing statute, when read alone, we would have concluded that the instant amendments to plaintiff’s complaint are barred, for it has heretofore been consistently held that the 1-year provision for bringing a “dram shop” action is a special limitation upon the statutory cause of action, rather than a general statute of limitation. (See Lowrey v. Malkowski, 20 Ill.2d 280, 170 N.E.2d 147 (1960).) The amendments here in question, not having been filed within that year, would clearly be barred. There are, however, other relevant considerations which must be brought to bear on the question before us. Significantly, section 46 of the Civil Practice Act (Ill. Rev. Stat. 1967, eh. 110, §46), provides in pertinent part that:

“(1) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand,
(2) The cause of action, cross demand or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted or the defense or cross demand interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving as aforesaid the cause of action, cross demand or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended. ” * *”

In construing the quoted portions of section 46 of the Civil Practice Act, our courts have held that so long as the amended pleading avers matters which grow out of the same transaction or occurrence set up in the timely filed original pleading, such amended pleading shall be held to relate back to the date of the original filing. (Halberstadt v. Harris Trust & Savings Bank, 55 Ill.2d 121, 302 N.E.2d 64 (1973); Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 15 N.E.2d 838 (1938); Krieger v. Village of Carpentersville, 8 Ill.App.3d 243, 289 N.E.2d 481 (2d Dist. 1972); O’Leary v. Siegel, 120 Ill.App.2d 12, 256 N.E.2d 127 (1st Dist. 1970).) That an amended pleading purports to set forth new causes of action is of no consequence, as the statute expressly contemplates that eventuality. O’Leary v. Siegel, 120 Ill.App.2d 12, 256 N.E.2d 127.

Defendants suggest that, notwithstanding the construction placed upon section 46 by the foregoing cases, none of such cases deals with amendments to “dram shop” actions, which according to defendants, are sui generis, being special statutory causes of action which must in every case be filed within one year of accrual. It follows, argue defendants, that section 46 of the Civil Practice Act cannot be applied here. Largely this same argument has heretofore been made concerning amended pleadings under the wrongful death provisions of the Injuries Act (Ill. Rev. Stat. 1967, ch. 70, pars. 1 and 2), which also incorporate a special limitation period. The supreme court had no trouble in holding section 46 applicable to amendments to pleadings filed in such cases. (Metropolitan Trust Co. v. Bowman Dairy Co. 369 Ill. 222, 15 N.E.2d 838 (1938).) In any event, however, defendants’ position cannot be sound, as section 46 itself specifically states that, in cases where it is factually applicable, the cause of action set forth in the amended pleading shall not be barred “* * * by any lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought * * (Emphasis added.) Such being the case, we determine that the circuit court acted properly in allowing the filing of the instant amended complaint claiming loss of means of support.

We should not omit to discuss the case of Cook v. Logans Inferno, Inc., 90 Ill.App.2d 83, 232 N.E.2d 177 (2d Dist. 1967), where it was held proper to preclude intervention in a “dram shop” action by additional parties claiming loss of support where the petition for leave to intervene was not filed within 1 year of the accrual of the alleged causes of action. A perusal of the opinion in that case leads us to the conclusion that, for some reason, section 46 of the Civil Practice Act was not considered by the court, which apparently relied solely upon article VI, § 14 of the Liquor Control Act. To the extent that the court did not deal with section 46, its opinion is not controlling here, but if the court did consider (albeit sub silentio) the effect of section 46 and rejected its application, we respectfully disagree with the result there reached.

Since we find no error in the circuit court’s entry of the order from which this appeal has been taken, such order should be and hereby is affirmed, and the cause is remanded to the Circuit Court of Will County for further proceedings, consistent with this opinion.

Order affirmed and cause remanded.

SCOTT, P. J., and STOUDER, J., concur.