author: Mr. JUSTICE DOWNING

text:
    Louise Matthews, Plaintiff-Appellee, v. Stewart Warner Corporation, Defendant-Appellant.
    (No. 57771;
    First District (2nd Division)
    June 10, 1974.

      Kirkland & Ellis, of Chicago (Caryl P. Bonotto and Gary M. Elden, of counsel), for appellant.
    Joseph A. Rosin, of Chicago, for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff was allegedly injured when a “zerk” (a steel lubrication fitting) allegedly chipped while plaintiff was inserting the zerk into a universal joint by means of an air press. Plaintiff brought suit against defendant corporation, the alleged manufacturer of the zerk, grounding her action on a products liability theory. After a trial before a jury, a verdict of $85,000 was entered on plaintiff’s behalf. Defendant’s appeal followed.

Before going further, some description of a zerk is necessary. A zerk is a fitting, made out of one piece of metal, the lower half looking somewhat like a screw, the upper half like a little ball; the upper half is separated from the lower half by a circular “collar” or “shoulder.” There is a small hole or channel extending through the zerk from top to bottom, whose purpose is to provide an opening through which grease or oil can be forced — by means of a grease gun — into whatever piece of equipment the zerk has been inserted in a given instance; in the matter at hand, for example, a universal joint. Inside the zerk, a spring holds a stopper against the hole, and a grease gun is able to push the stopper aside to insert a lubricant into the zerk. When the stopper moves back into place, the lubricant is prevented from escaping. The lubricant flows down the zerk’s channel and into the piece of equipment to which it is attached.

The testimony adduced in the trial court can be summarized, in its pertinent portions, as follows. Plaintiff testified that at the time of trial she was 27 years old and, at the time of the accident, age 20; that, in June of 1964, she had begun employment in assembly line work at Wesco Automotive Parts Company in Chicago; that, during the morning hours of August 4, 1964, she was working at a machine (an air press), inserting zerks into universal joints; and that her manner of inserting zerks into universal joints was this: the universal joints were in a pan on a runner beside the machine on the right hand side, and she would pick up the universal joint with her right hand and place it in a vice-like cradle in the machine; she would then pick up a zerk with her right hand, place it straight up into a hole in the universal joint, twist the vice to close it, and press a handle on the machine, which would drive a steel press hammer onto the top of the zerk, driving the zerk into the hole in the universal joint.

Plaintiff further testified that, with respect to the circumstances surrounding the accident and injury on August 4, 1964, she placed a zerk into a universal joint — in a straight up and down position — and tightened the vice. She identified a zerk she was shown, manufactured by defendant, as similar to the zerks she had worked with at Wesco. She then hit the air press handle in order to activate the press, and the steel press hammer came down to the top of the zerk, commencing to push it into the universal joint. She then heard an unusual sound — something like a “pshh” sound — and felt a stinging sensation underneath her left eye. She looked down and saw that the top of the zerk had been broken. The universal joint was still in place, and the zerk was inserted in the joint up to its “collar” point, but the top portion of the zerk — though not the entire top — was broken off. She wiped her eye, and, after so doing, noticed that her vision was becoming somewhat blurred. She summoned her foreman, who sent her to a clinic to be examined. The universal joint with the broken zerk was still in the vice when she left the factory; she never again returned to Wesco.

Subsequently, plaintifFs left eye was enucleated, and medical testimony adduced at trial was to the effect that the condition of plaintiff’s eye was the result of, and definitely related to, a piece of the zerk flying into her eye.

Philip Lapine, a purchasing agent for plaintiff’s employer at the time of the accident and at the time of trial, testified, in part, that from 1961 through 1964 his company purchased all its zerks from defendant, Stewart Warner; that his company used what was called a “mighty mite” press to drive zerks into the particular size universal joints involved herein; that the press sits on a bench, is 12 to 18 inches wide and 2Vz to 3 feet in height, and has a “stroke” anywhere from 6 to 8 inches long; that the mighty mite press was an air driven press to which a ram was connected and that 120 pounds of air pressure was required to drive the drill press; and that, in 1964, air was supplied to the drill press from an air compressor.

Mr. Lapine went on to testify that his company maintained a separate area in the assembly department where Stewart Warner zerks, which were delivered in corrugated boxes, were kept and that the area was about 30 to 40 feet from the assembly lines where the zerks would be used.

Joseph Kielbasa, the supervisor of the assembly department in which plaintiff worked at the time of the accident, testified, inter alia, that in 1964 the department maintained approximately six presses of the type used to insert the size zerks in question; that he was notified about plaintiff’s accident and went to the area in which she was working; that after he had discussed the accident with plaintiff, he looked at the product she was working on and saw that a piece was still intact on the fixture, but that the top of the zerk was split at an angle, not lengthwise or sideward; that less than half of the zerk top was missing; that he then gave the machine plaintiff had been working on a slight inspection, failed to find anything wrong with the machine, and, within five to ten minutes, placed another employee at work on the machine; that the other employee worked on the machine for the balance of the day; that the machine was operable and that nothing was done to the machine following the accident; that the universal joint in the machine plaintiff was operating was removed from the press and placed in the plant superintendent’s office; and that, when it was so placed, it contained the zerk fitting which had broken.

Kielbasa was later recalled as a witness for plaintiff and testified, in pértinent part, that the maximum pressure output of the compressor which supplied the mighty mite presses was 100 pounds; that the maximum pressure output he, himself, had even seen on the pressure gauge was 90 pounds; that whenever the pressure fell below 75 or 80 pounds, the air control machines were shut off until the pressure built up to 90 pounds; that the problem was never over-pressure, but under-pressure; and that there was trouble with the air compressor two or three times daily.

Marvin Salzenstein, a degreed mechanical engineer specializing in machine design, air pollution, and computation, was called to testify as plaintiff’s witness. He testified that he had examined the mighty mite presses at plaintiff’s former employer on two occasions in May of 1971; that is, some five months prior to trial in this cause and nearly seven years after plaintiffs accident. When asked to describe the mighty mite press, he responded that it was a small table-mounted press operated by compressurized air, which would enter at the top and drive a piston downward. The piston was attached to a ram at the bottom, which would drive whatever one was pressing into the base. There were two handle controls on the press, so that an operator would have to use both hands on the controls to press the “two buttons” which would bring the ram downward to do the pressing. When the controls were released, the press would come back up again.

The witness was then asked whether he was familiar with the mighty mite press as it existed in 1964, to which he responded that he was not. Salzenstein, continuing, testified that assuming 100 pounds of air pressure per square inch was entering the machine, he could determine the maximum amount of force the ram could exert. Salzenstein stated that the matters he would consider in making his determination would be the air pressure entering the mighty mite press, the sizes of the machine’s piston and ram, and the narrowest cross-section of the zerk, but that he would not have to know the length over which the ram would descend in order to determine the force it would exert. The witness was then called upon to examine a zerk, manufactured by defendant, similar to that used by plaintiff on the day of the accident. He testified that a zerk of that nature should, if properly manufactured, have a tensile strength of 80,000 to 100,000 pounds per square inch; that if one were to stretch the material to a point approaching its tensile strength, the material would finally fail as it reached its tensile strength; and that he had been able to determine the maximum amount of force that the ram of a mighty mite press could exert on the type of zerk he had been shown in the ram’s attempt to push the zerk into a universal joint.

Salzenstein then explained the manner in which he would calculate the amount of stress the zerk could bear, utilizing the various factors he considered necessary to make his determination, as set out above. A lengthy hypothetical question, propounded by plaintiff’s counsel, was then put to the witness. After defense counsel objected to the hypothetical question, the following colloquy took place:

“THE COURT: State any additions or deletions from that hypothetical question. That you—
MR. RONOTTO [defense counsel]: I do not think basically, that the man is qualified to express an opinion on this product. I do not think that his testimony today went out [sic] to that plant some time in May of this year and the facts that counsel has given him are sufficient for him to express an opinion or what might have occurred in August of 1964.
THE COURT: Any addition or deletion from the hypothetical question?
MR. RONOTTO: None for the moment.
THE COURT: Objection overruled. He may answer.
THE WITNESS [Marvin Salzenstein]: Yes, I do have an opinion.
BY MR. ROSEN [sic] (counsel for plaintiff): What is that opinion?
# # #
Q. In other words, if this zerk were made pursuant to proper specifics regardless of what happened, it couldn’t break unless you put at least the amount of force that met their minimum standards, correct?
A. That’s correct.
Q. [I]n order for this ram to do anything abnormal to that zerk as far as shattering the zerk, you would have to have 100,000 pounds of pressure, is that correct?
A. Well, anywhere between 80 [sic] and 100,000 is the minimum for the material.”

On cross-examination, Salzenstein was asked several questions regarding the method and means used to acquire his knowledge of the operation of the mighty mite press, including questions concerning the piston and ram dimensions, the air pressure input for the mighty mite press, and so forth. He was also asked whether he was familiar with any standards used for the manufacture of zerks, to which he responded that he was not.

On redirect examination, Salzenstein was asked for his opinion as to what the tensile strength of a zerk should be in order to properly accommodate the type of intended use to which the zerk was to be put. He responded that it was a question to which he could not give an answer.

Leonard Taussig, a metallurgical engineer appearing on plaintiffs behalf, testified, in part, that he had examined zerks and the universal joint into which they would be fitted; that he had examined information relative to certain specifications published by defendant regarding the zerks he had examined; that, based upon his examination of the prototype of the zerk plaintiff used and upon his examination of defendant’s specifications for the zerk’s manufacture, it was his opinion that the zerk involved in plaintiffs accident was defective; that the reason for his opinion was that the hypothetical question propounded for him stated that 54,000 or 57,000 pounds per square inch of stress was imposed upon the zerk, defendant’s specifications indicated that the tensile strength of the zerk was to have been 80,000 to 100,000 pounds per square inch, and the figures given in the hypothetical were all below the specifications, which would indicate defectiveness; and that there were certain areas where the defective condition may have entered (in the heat treatment or plating processes, or in the use of defective original materials), but, as he described them, they were conjectural at best.

Allen Gothelf, chief metallurgist for the defendant corporation, appearing on behalf of defendant, testified, in part, that in discussing the pounds per square inch of pressure applied by a press in the process of inserting the prototype zerks into universal joints, two factors were to be considered: the length of the stroke of the press and the force applied to the zerk; that he had never seen a mighty press, but that he understood it to be an air-operated press; that, assuming a zerk shattered under pressure less than the tensile strength of the raw steel used in its manufacture, he would not know whether the zerk would be defective; that if force had been applied straight down upon the zerk, the zerk might have worked as intended; and that if the force had been applied at an angle, a break could occur in a perfectly good fitting.

Defendant, on this appeal, presents several issues which it asks us to consider; they are:

(1) whether the trial court erroneously admitted the testimony of plaintiffs expert witnesses, Salzenstein and Taussig;

(2) whether the trial court erroneously excluded defendant’s evidence concerning (a) industry standards and the state of the art of zerk manufacturing; (b) certain zerks, some manufactured by defendant, others not, which had been found at plaintiffs employer’s plant; and (c) defendant’s manufacturing, inspecting, and testing procedures;

(3) whether certain remarks made by counsel for plaintiff were improper and prejudiced defendant’s right to a fair trial; and

(4) whether defendant was entitled to a judgment notwithstanding the verdict.

I.

With respect to the first issue, defendant argues that Marvin Salzenstein’s testimony in the trial court was incompetent and without proper foundation in these regards: (1) because Salzenstein admitted that he did not know what standard should be used in determining whether a zerk is defective; (2) because there was no evidence respecting the piston and ram sizes of the 1964 mighty mite press; (3) because there was no evidence concerning the maximum pressure which could have been exerted by the 1964 mighty press; and (4) because Salzenstein did not know whether the press struck the zerk at an angle and/or near an edge, Salzenstein could not have known the narrowest cross-section of the portion of the zerk which bore the impact of the press. Moreover, defendant claims that Salzenstein’s testimony was confusing and misleading and that it invaded the province of the jury by finding an ultimate fact. Regarding Leonard Taussig’s testimony, defendant asserts that it had all of the deficiencies of Salzenstein’s testimony.

Plaintiff, on the other hand, urges generally with respect to these points that defendant failed to make proper objections to the testimony of Salzenstein and Taussig and failed to preserve the points on appeal by failing to incorporate them in defendant’s post-trial motion; thus, plaintiff claims, the arguments have been waived by the defendant.

Plaintiff’s theory in the court below was to follow the requirements of a strict liability case, set out in classic form in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182. Briefly, with respect to the Suvada requirements as they relate to plaintiffs claim here, plaintiff was to prove: (a) that the zerk manufactured and sold by the defendant was unreasonably dangerous or not reasonably safe for intended use; (b) that the said unsafe condition existed at the time the zerk left the defendant’s control; and (c) that the said unsafe condition was a direct and proximate cause of plaintiffs injury. Plaintiff urges that ample evidence was offered below to prove each of these propositions.

We have thoroughly reviewed the record in this matter with a keen eye, and we have scrutinized the testimony of plaintiffs experts, Salzenstein and Taussig, in light of defendant’s arguments relating to it. Based on the record before us, we have reached the following conclusions. Save for the objection (and its resolution) respecting the 100-pounds-per-square-inch-of-pressure figure, which we have discussed in footnote 5 above, the record reflects an absence of proper, specific objections on the part of defense counsel to the statements made by plaintiffs experts in their testimony, which defendant now, for the first time, characterizes as objectionable and erroneously admitted into evidence.

Defendant argues now that because there was no evidence admitted concerning the 1964 press piston and ram size, Salzenstein’s opinion was without foundation. However, defendant, at no time — either by way of a specific objection or on Salzenstein’s cross-examination — challenged either the measurement of the piston or ram, or lodged an objection that the ram or piston sizes in 1964 were or may have been different than those determined by Salzenstein.

Defendant argues now that because there was no proof concerning the maximum pressure which could have been exerted by the 1964 press, Salzenstein’s opinion was without foundation. However, we find again, in reviewing Joseph Kielbasa’s testimony on this matter, that defendant failed to raise proper, specific objections at any time throughout the course of that testimony; that is, objections as they would relate to the questions which defendant now seeks to raise for the first time before this court. Likewise, defendant did not offer any evidence that the 1964 press differed from the 1971 press examined by Salzenstein.

Defendant now asserts that Salzenstein could not have known the narrowest cross-section of the portion of the zerk which bore the impact, because, defendant claims, Salzenstein did not know whether the press struck the zerk “at an angle and/or near an edge”; therefore, defendant concludes, the testimony was without foundation. Again, we find no objection from defendant concerning the figure employed by Salzenstein in his calculations as representing the zerk’s narrowest cross-sectional area.

Regarding the other assignments of error defendant attempts to raise concerning the lack of foundation for Salzensteins testimony, we have considered each of them, and suffice it to say that in each instance we find a failure on defense counsel’s part to make a proper objection. It is fundamental that to preserve any evidentiary issue for consideration on review, a timely objection must be made in the trial court specifying the grounds upon which the objection is based. See People v. Burage (1961), 23 Ill.2d 280, 283, 178 N.E.2d 389; Schoolfield v. Witkowski (1st Dist. 1964), 54 Ill.App.2d 111, 127-128, 203 N.E.2d 460; and Stegmann v. Zachariah (5th Dist. 1964), 46 Ill.App.2d 7, 12-13, 196 N.E.2d 703.

Defendant further contends that Salzensteins testimony invaded the province of the jury by finding an ultimate fact, is., “defectiveness.” This court very recently spoke to this issue in In re Roberts Park Fire Protection District, 20 Ill.App.3d 282, 288, 314 N.E.2d 208, 213, where we stated:

“It was proper for counsel for both parties to ehcit the opinion of expert witnesses regarding the ultimate question before the court. (Miller v. Pillsbury Co., 33 Ill.2d 514, 516, 211 N.E.2d 733, cited in Moren v. Samuel M. Langston Co., 96 Ill.App.2d 133, 142, 237 N.E.2d 759.) Despite early precedents to the contrary, the reviewing courts of Illinois have approved the practice of permitting the expert to express directly his opinion upon ultimate issues on the theory that ‘since the trier of fact is not required to accept the opinion of the expert, such evidence does not usurp the province of the jury.” (Merchants National Bank v. E. J. v. E. Ry. Co., 49 Ill.2d 118, 122, 273 N.E.2d 809.) See also Coleman v. Illinois Central R. R. Co., 13 Ill.App.3d 442, 444, 300 N.E.2d 297, involving an expert opinion on adequacy of protection at a railroad crossing as does Merchants National Bank; also Kobrand Corp. v. Foremost Sales Promotions, Inc., 8 Ill.App.3d 418, 421, 291 N.E.2d 61, concerning the opinion of an expert regarding competition in the sale of intoxicating liquor.”

We find that this language aptly applies to the instant set of circumstances.

In addition, defendant argues that Salzensteins testimony was confusing and misleading; we simply find no merit in the argument.

Turning now to Leonard Taussig’s testimony, defendant proffers two contentions: first, that it had all the deficiencies of Salzensteins testimony and, therefore, should not have been admitted; and, second, that the testimony should have been excluded owing to plaintiff’s aUeged noncompliance with certain pre-trial orders, which allegedly frustrated defendant’s discovery.

Regarding the first contention, we find, as we found with respect to Salzenstein’s testimony, that there was, again, a failure to lodge proper, timely objections to the testimony. At one point, after a hypothetical question had been put to Taussig concerning whether the zerlc of the hypothetical had been properly manufactured, defense counsel did object in this manner: “I have an objection, if it please the court. Not as to his qualifications, but as to the facts that he took into consideration. They are not sufficient facts to base an opinion.” The court then asked whether counsel for defendant wished to add any facts to the hypothetical, to which counsel responded that he did not, at the moment. We do not believe that this objection preserved for this appeal any of the evidentiary issues defendant now attempts to raise before this court. (See Schoolfield v. Witkowski and Stegmann v. Zachariah, supra.) Moreover, we find that the above-quoted language from In re Roberts Park Fire Protection District, supra, adequately answers defendant’s argument that Taussig’s opinion on “defectiveness” invaded the jury’s province; we hold that it did not.

Defendant further contends that Taussig’s testimony should have been excluded because of plaintiff’s alleged noncompliance with the court’s order allowing defendant to depose plaintiff’s prospective expert witnesses; this alleged noncompliance, defendant argues, frustrated its discovery. Briefly, a few days prior to trial, and prior to the selection of the jury, the trial judge ordered that defendant could depose plaintiffs prospective expert witnesses, and there was an agreement between counsel that the said witnesses would be brought to defense counsel’s office for the purposes of deposing them. On the day arranged for depositions, Marvin Salzenstein was deposed. While the trial was in progress, immediately before the plaintiff was to call Leonard Taussig, counsel for defendant objected to his being allowed to testify, stating that he knew nothing about Mr. Taussig and that he (Taussig) had never been named in any of the discovery procedures. After hearing argument on defendant’s motion to exclude Taussig, the court ruled that defendant’s motion would be denied insofar as permitting Taussig to testify. We find that it was within the sound discretion of the court to so rule and that the discretion was not abused.

In its brief, defendant argues that it was denied the opportunity to take Taussig’s deposition. From the totality of the circumstances reflected by the record before us, we do not see that to have been the situation. While it may be true that plaintiff was in technical violation of the trial court’s order with respect to the depositions, we believe that —even though the trial was in process — the court would have allowed Taussig’s deposition had the request been forthcoming from defendant. In any event, we believe that technical noncompliance with an order such as that in question would not warrant our overturning the verdict of the jury and the judgment of the court below.

We have reviewed the paragraphs of defendant’s supplemental post-trial motion which relate to the points we have just discussed, and we find that those points are not particularized with the specificity required by Supreme Court Rule 366(b) (2) (iii) (Ill. Rev. Stat. 1971, ch. 110A, par. 366(b) (2) (iii)). Consequently, defendant may not now urge as error the ruling on the motion made in the court below. Danielson v. Elgin Salvage & Supply Co. (2nd Dist. 1972), 4 Ill.App.3d 445, 447, 280 N.E.2d 778.

II.

The second issue presented for review is whether the trial court erred in excluding defendant’s evidence concerning industry standards and the state of the art of zerk manufacturing; whether it erred in excluding certain zerks from evidence; and whether it was error to exclude evidence of the defendant’s manufacturing, inspecting, and testing procedures.

As stated earlier, plaintiff’s theory in the trial court followed the classic requirements of a strict liability case as delineated in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182. In resolving the issue with which we are now dealing, we need look no further than the rationales of Suvada and the decisions interpreting it. The court in Suvada, at pages 620-621, made these statements in analyzing the strict liability concept:

“In analyzing the basis for the imposition of strict liability Justice Traynor, speaking for the California court stated, ‘Although in these cases strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law [citations] and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products [citations] make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort. Accordingly, rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturers liability to those injured by its defective products unless those rules also serve the purposes for which such liability is imposed.’ (59 Cal. 2d 57, 63.) We agree.
We note that the views herein expressed coincide with the position taken in section 402A of the American Law Institute’s revised Restatement of the Law of Torts approved in May 1964. The section provides:
‘(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to. the ultimate user or consumer, or to his property, if
‘(a) the seller is engaged in the business of selling such a product, and
‘(b) it is expected to reach the user or consumer in the condition in which it is sold.
‘(2) The rule stated in subsection (1) applies although
‘(a) the seller has exercised all possible care in the preparation and sale of his product, and
‘(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller’.”

In Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill.2d 443, 453, 266 N.E.2d 897, our supreme court made clear that a defense predicated upon a manufacturer’s conduct was not available to a defendant in a strict liability case as a matter of law.

The soundness of the Cunningham opinion has been most recently underscored in Gelsumino v. E. W. Bliss Co. (1st Dist. 1973), 10 Ill. App.3d 604, 295 N.E.2d 110, which held a state-of-the-art defense irrelevant with respect to strict liability counts.

We are satisfied, based upon the established law of this state on the matter, that the court below properly excluded the evidence in question.

in.

Defendant next contends that certain remarks made by counsel for plaintiff were improper and prejudiced defendant’s right to a fair trial. Without belaboring the matter, we find, based upon a review of the entire record, and specifically upon a review of those remarks claimed to be prejudicial, that the remarks were not such as to warrant a remandment to the trial court for a new trial in this cause.

IV.

Finally, defendant urges that this court remand the instant case and direct the trial court to enter a judgment for the defendant. We have reviewed the evidence in its totality, and we do not believe that a judgment notwithstanding the verdict should be entered in this case, as it is not a case in which all of the evidence, when viewed in its aspect most favorable to the plaintiff, would so overwhelmingly favor the defendant herein that no contrary verdict based upon that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.

We find no basis on which any prejudicial error occurred necessitating a new trial. For these reasons, then, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

STAMOS and LEIGHTON, JJ., concur.

       The prototype of the zerk involved in plaintiff’s accident, according to defendant’s specification charts, measures 35/64 inches from top to bottom, has a “collar” or “shoulder” diameter of 11/32 inches, and measures % inch from a point below the collar to the bottom of the zerk.

       For the purposes of this discussion, a universal joint is made out of steel and can be characterized as looking like an “X,” whose distance is approximately 3 Yz inches from tip to tip. A hole is drilled at the apex between two arms of the “X” in order to accommodate the zerk.

       It is to be noted that the questions put to Mr. Lapine with regard to the mighty mite press were not specific, in any manner, as to the time at which the presses he was describing were in operation at Wesco; that is, he did not indicate, nor was he asked, whether the machines he was describing were those in operation at Wesco at the time of plaintiff’s accident or those in operation at Wesco at the time of the trial.

       It is to be noted that the universal joint and the zerk in question were not presented in evidence at trial. Apparently they were not. available.

       It is to be noted that, at this juncture, defense counsel objected to the use of the 100-pounds-per-square-inch-of-pressure figure on the grounds that there had been no testimony that, on the day of the occurrence, 100 pounds per square inch of pressure had been entering the mighty mite press. In response to the court's question, counsel for plaintiff stated that he intended to later tie up the testimony by recalling Joseph Kielbasa as plaintiff’s witness, who would testify to the amount of pressure entering the mighty mite press in 1964. We find, from a reading of the record, that the matter was later tied up, based upon Joseph Kielbasa’s testimony on this point, as set forth above in this opinion.

       The record shows that plaintiff’s counsel had earlier sent defense counsel a letter, indicating that plaintiff might call as an expert witness “the Taussig Associates, Inc.” The record also shows that Leonard Taussig’s name arose repeatedly during the Salzenstein deposition.


source: Caselaw Access Project

author: Mr. JUSTICE STAMOS

license: Public Domain

text:
    Mark Kravis, a Minor, by Allen Kravis, His Father and Next Friend, Plaintiff-Appellee, v. Smith-Marine, Inc., et al., Defendants — ( State Farm Fire & Casualty Company, Garnishee-Appellant.)
    (No. 59059;
    First District (2nd Division)
    June 11, 1974.

      Rehearing denied July 26, 1974.

      John T. Kennedy, of Chicago, for appellant.
    Joseph & Friedman and Lipnick, Barsy & Joseph, both of Chicago, for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This appeal arises from a garnishment proceeding in which the court entered a judgment in the sum of $50,000 in favor of the minor plaintiff, Mark Kravis. Garnishee, State Farm Fire & Casualty Co., appeals from the judgment and contends that (1) the business pursuits exclusion of its insurance policy applies; and (2) covenants not to sue given by plaintiff to certain defendants precludes recovery in the garnishment proceeding.

This cause of action arose from a boating accident which occurred on August 30, 1966, in Lake County, Illinois. A boat owned by William Farrar and operated by Andrew Korpan collided with another boat in which plaintiff, Mark Kravis, was a passenger. As a result of this collision plaintiff was seriously injured.

William Farrer purchased the boat involved in the accident from Smith-Marine, Inc., of Cicero, Illinois, less than 1 year prior to the accident. Thereafter Farrar repeatedly notified Smith-Marine that repairs to the boat were necessary. A few days before the accident, Gerald Meyer, an employee of Smith-Marine, was instructed by his employer to transport the boat from its mooring place at Farrars summer home to the Smith-Marine shop in Cicero for repairs. Farrar had given Smith-Marine permission to pick up the boat and perform the needed repairs.

Smith-Marine leased one or two slips at Korpans Landing, a privately-owned pier near the Farrar summer home. Meyer also kept his own private boat at Korpans Landing. On August 30, 1966, Meyer drove his car and trailer from Smith-Marine Korpans Landing, parked his car and trailer there, and drove his own boat to the Farrar summer home. He was accompanied by Andrew Korpan, the 14-year-old son of Walter and Anna Korpan, proprietors of Korpans Landing. Andrew Korpan gratuitously agreed to drive Farrar’s boat back to Korpans Landing where it was to be placed on Meyer’s trailer for the trip to Smith-Marine. The accident occurred while Andrew' Korpan was operating the Farrar boat.

The Farrar boat was insured by a $50,000 boatowner’s policy issued by garnishee State Farm Fire & Casualty Co. (hereinafter State Farm). The pertinent policy provisions are:

“Policy Agreements
To pay all sums which the insured shall become legally obliged to pay as damages because of bodily injury sustained by other persons and property damage, arising out of the ownership, maintenance or use of the owned watercraft.
# # #
The unqualified word ‘insured’ includes (1) the named insured, (2) * * * residents of his household * * *, (3) any other person while using the owned watercraft, provided the actual use of such watercraft is with permission of the named insured * * * and is within the scope of such insurance.
» # #
‘Business’ includes trade, profession or occupation.
Exclusions
This policy does not apply:
(r) to an occurrence while the boat to which the insured motor is attached, or the boat insured hereunder, is used as a public livery conveyance for carrying passengers for compensation or rented to others, or used for any other business pursuit, or while operated in any official race or speed test.”

On December 8, 1970, plaintiff filed an amended complaint against Smith-Marine, Andrew Korpan, Anna Korpan and Walter Korpan, individually, and Anna Korpan and Walter Korpan, doing business as Korpan’s Landing, alleging the negligent operation of the Farrar boat by Andrew Korpan, agent for Smith-Marine and Korpan’s Landing. That same day a hearing was held, at which time the court approved settlements between plaintiff and Smith-Marine and between plaintiff and Anna and Walter Korpan, individually and doing business as Korpan’s Landing. In return for these settlement agreements, plaintiff executed covenants not to sue Smith-Marine and Anna and Walter Korpan, individually and doing business as Korpan’s Landing. The covenant not to sue Smith-Marine included a handwritten provision (initialed by counsel) that the covenant is “specifically not an accord and satisfaction nor release as to any rights remaining on behalf of Mark Kravis against State Farm Mutual Insurance Co.” The covenant not to sue Anna Korpan, individually and doing business as Korpan’s Landing stated, inter alia, “this agreement is not intended to be and is not a release nor an accord and satisfaction.”

Counsel for plaintiff stated at the hearing, and this statement was confirmed by the trial judge, that State Farm had been notified of all negotiations between the parties. The trial judge stated that he had spoken to counsel for State Farm who declined to participate or appear. Plaintiffs counsel stated that Andrew Korpan’s use of the boat was within tire coverage of the State Farm policy, and that plaintiff intended to pursue a recovery against State Farm in a subsequent action under the terms of the policy.

The trial court dismissed the cause of action with prejudice as against Smith-Marine, found for plaintiff against Andrew Korpan and assessed damages at $315,000. The judgment order stated: “Execution stayed until further order except for any action plaintiff or defendant Andrew Korpan might have against State Farm Insurance Co.”

On March 17, 1971, plaintiff filed an affidavit of garnishment against State Farm based upon the judgment entered on December 8, 1970, against Andrew Korpan. The affidavit stated that State Farm was indebted to the debtor, Andrew Korpan, and had in its possession, custody or control property belonging to him. The garnishment summons was served on State Farm on March 23, 1971.

On December 16, 1971, garnishee State Farm filed its amended answer to the garnishment interrogatories and raised as affirmative defenses: (1) that its policy exclusion as to business pursuits was applicable to Andrew Korpan’s operation of the Farrar boat; and (2) that the covenants not to sue Smith-Marine and its agents and servants, and Anna and Walter Korpan, individually and doing business as Korpan’s Landing, and their agents and servants also ran to Andrew Korpan, thereby precluding garnishment against State Farm.

On February 21, 1973, the trial court found that the defenses raised by State Farm were inapplicable to the facts of the case, and that plaintiff was entitled to garnishment against State Farm pursuant to the judgment of December 8, 1970. Judgment was then entered in favor of plaintiff and against defendant garnishee in the amount of $50,000.

When ruling on a motion for judgment on the pleadings, a trial court must ascertain whether an issue of fact is presented by the pleadings. If no issue of fact exists, the trial court must determine which party is entitled to a judgment as a matter of law. (Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill.App.3d 115, 294 N.E.2d 7.) In the instant case the sole issues presented concern construction of State Farm’s insurance policy and of the covenants not to sue. Construction of contracts presents solely questions of law, and the trial court properly proceeded to construe the contracts at issue. Cf. Coons v. Home Life Insurance Co., 368 Ill. 231, 13 N.E.2d 482.

Defendant does not dispute the fact that Andrew Korpan’s use of the boat was with the permission of the insured and that therefore Andrew Korpan was an additional insured under the terms of the policy. Defendant contends, however, that at the time of the boating accident the boat was being used by Smith-Marine in its business pursuits, and that therefore, the policy’s “business pursuits” exclusion is applicable. Defendant argues that permission to use the boat was given to Smith-Marine by Farrar to enable Smith-Marine to perform the necessary repair work. To achieve this end, it was necessary for Smith-Marine to transport the boat to its premises in Cicero. The activities involved in picking up the boat and transporting it were within the business pursuits of Smith-Marine.

The pertinent policy provision excludes coverage when the insured boat is “used as a public livery conveyance for carrying passengers for compensation, or rented to others, or used for any other business pursuit, or while operating in any official race of speed test.” The basic question before this court is one of construction of this exclusionary provision. It is an established principle of insurance contract law that the insurer assumes the burden of affirmatively demonstrating that the policy exclusion is applicable. (Caster v. Motors Insurance Co., 28 Ill.App.2d 363, 171 N.E.2d 425.) It is equally well established that when an exclusionary provision is ambiguous or unclear, that construction of the provision will be adopted which resolves the uncertainty in the insured’s favor. State Farm Fire & Casualty Co. v. McDonald, 87 Ill.App.2d 15, 230 N.E.2d 513.

In effect, defendant urges that we interpret the clause “used for any other business pursuit” to mean that a boat is excluded from coverage if it is in the possession of someone engaged in business of selling or servicing boats. Plaintiff urges us to interpret the clause to mean that a boat is excluded only if being driven as a means of furnishing service to customers, i.e., as a conveyance for hire. Therefore, because the exclusion is susceptible to more than one interpretation, we conclude that it is ambiguous, and our duty is to construe it in a reasonable manner.

Plaintiff maintains that the construction rule of ejusdem generis is applicable. The principle of ejusdem generis simply stated is that when general words follow particular and specific words in a statute or contract, the general words must be construed to include only things of the same general kind as those indicated by the particular and specific words. (Bullman v. City of Chicago, 367 Ill. 217, 10 N.E.2d 961.) However, the restriction of general words to things ejusdem generis must not be carried to such excess as to deprive them of all meaning. If the particular words exhaust a whole genus, the general words must refer to some larger class. Gage v. Cameron, 212 Ill. 146, 72 N.E. 204.

The application of this rule of construction may be employed to ascertain the intention of the contracting parties as expressed in the contract to be construed. (Gage v. Cameron, supra.) We are of the opinion, however, that we need not rely exclusively upon the rule of ejusdem generis to construe the exclusionary provision in a reasonable manner.

Plaintiff directs our attention to Security National Insurance Co. v. Sequoyah Marina, Inc., 246 F.2d 830 (10th Cir. 1957) which is somewhat similar to the instant case. In that case the insured gave his permission to a repairman to repair his boat. The repairman started the engine and the boat exploded causing property damage. The insurance policy contained an exclusionary provision which excluded coverage when the boat was used for any business pursuit other than activities ordinarily incident to non-business pursuits. The court found that the activities of the repairman were ordinarily incident to the non-business use of the boat by the owner and were not within the exclusion.

Although the exclusionary provision in Security National Insurance Co. included an “ordinarily incident to non-business pursuits” clause which does not appear in the instant policy, the reasoning of the court applies to the situation at bar. The court found that the boat was the object of a business pursuit, rather than being used in furtherance of business pursuits. We agree with that conclusion, and we likewise are of the opinion that the use of the boat in the instant case, in being driven to the shop for repairs, was not a business pursuit of Smith-Marine, and therefore, is not within the policy exclusion. It would be a distortion of the insurance policy to conclude that the exclusion applies to the facts before us. If the insured Farrar had driven his boat to be transported for repairs, and had collided with another boat, there would be no question that the policy exclusion would have been inapplicable. We see no material difference in the instant case.

We also note that the court in Security National Insurance Co. found significant the fact that automobile insurers have deemed it advisable to expressly exclude repairmen from coverage. Our research has uncovered many cases in which automobile accidents occurred while repairmen were driving insureds’ cars to or from repair shops. The automobile policies excluded coverage to automobiles “used in the automobile business.” The issue in these cases, which is analogous to the issue before us, was whether the repairmen’s driving of the automobiles constituted a use in the automobile business. These decisions held that the automobiles being driven for repairs were objects of business pursuits, and were not being used therein. (See Allstate Insurance Co. v. Skawinski, 40 Ill.App.2d 136, 189 N.E.2d 365; Goforth v. Allstate Insurance Co., 220 F. Supp. 616 (W.D.N.C. 1963), affirmed per curiam, 327 F.2d 637 (4th Cir. 1964); McGree v. Jenning, 55 Wash. 2d 725, 349 P.2d 1071.) Accordingly, we hold that the Farrar boat was not being used by Smith-Marine in its business pursuits, and the policy exclusion is inapplicable to the facts. Plaintiff is therefore entitled to indemnification pursuant to the policy agreement binding State Farm “to pay all sums which the insured shall become obligated to pay because of bodily injury * * * arising out of * * * use of the owned watercraft.”

Defendant’s second contention is that it is not obligated to pay the amount of the policy because the covenants not to sue given by plaintiff to Smith-Marine, its agents and servants, and to Anna and Walter Korpan, individually and doing business as Korpan’s Landing, their agents and servants, precluded recovery against State Farm as garnishee. Specifically, defendant maintains that plaintiff’s amended complaint alleged that Andrew Korpan was acting as agent of Smith-Marine in his operation of the Farrar boat, and that plaintiff did not deny this agency relationship in any additional pleading. Therefore, defendant concludes, because the covenants not to sue encompassed agents of Smith-Marine and the Korpans, these covenants also ran to Andrew Korpan. The covenants therefore barred any action against Andrew Korpan, and no basis exists for garnishment.

Assuming, arguendo, that Andrew Korpan was acting in an agency relationship (we note that this issue was not litigated or determined in the proceedings below), we do not agree with defendant that the covenants not to sue operated to release Andrew Korpan or to preclude recovery against defendant in the instant suit.

Generally, a covenant not to sue one of several joint tortfeasors does not release others. (Chicago & Alton Ry. Co. v. Averill, 224 Ill. 516, 79 N.E. 654.) Under Illinois law a covenant not to sue does not have the same legal effect as a release, and has no effect on the liability of other wrongdoers not parties to the covenant.

In the instant case, the covenant not to sue Smith-Marine also contained a handwritten provision (initialed by counsel for plaintiff, Smith-Marine, and Anna and Walter Korpan) that the covenant specifically did not release plaintiff’s rights against State Farm. In open court on December 8, 1970, plaintiff’s counsel stated that negotiations between the parties had resulted in a settlement whereby Smith-Marine had agreed to accept covenants not to sue from plaintiff, and that a judgment should be entered only against Andrew Korpan. Statements of plaintiff’s counsel and the language of the trial court in its order manifested the intent of the parties that an action would be brought against State Farm on its policy of insurance.

The intent of the parties, as manifested in the court proceedings, as well as in the covenant running to Smith-Marine, should be given the full effect envisaged by the parties. (See Edgar County Bank & Trust Co. v. Paris Hospital, Inc., 10 Ill.App.3d 465, 294 N.E.2d 319.) Defendant attempts to refute this clear manifestation of intent by emphasizing that defendant was erroneously referred to as State Farm Mutual Insurance Co. Defendant’s attempt to convince this court that it was not the party referred to in the proceedings is futile. To accept this reasoning would completely repudiate the intent of the parties as reflected throughout the record before us. Defendant was notified of all negotiations and proceedings, and cannot now rely on a mere misnomer. For these reasons we hold that the covenants not to sue did not release Andrew Korpan, and that, therefore, the instant garnishment suit was proper.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

HAYES, P. J., and LEIGHTON, J., concur.

       An April 22, 1971, the court granted plaintiff’s motion to amend its decree of December 8, 1970, to order 1) a nonsuit as to all defendants other than Andrew Korpan; and 2) a correction of the name of State Farm Fire & Casualty Co.


author: Mr. JUSTICE BURMAN

text:
    Philip Kuperman, d/b/a Quality Metal Fabrication Company, Plaintiff and Counterdefendant-Appellee, v. A. R. Leak, Defendant and Counterplaintiff-Appellant.
    (Nos. 58172-3 cons.;
    First District (4th Division)
    June 12, 1974.

      Watt & Holland, of Chicago (William E. Holland, of counsel), for appellant.
    Warren M. Wexler, of Chicago, for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This is the consolidation, on appeal, of circuit court cases numbered 70M1-128999 and 70M1-131200. In the first suit plaintiff sought to recover for heating and cooling materials, parts and labor furnished defendant pursuant to a written contract. The second action was brought to recover for heating and cooling materials, parts and labor furnished defendant as extra work incidental to other work being performed for defendant, allegedly at his special instance and request.

The defendant answered both complaints and filed identical counterclaims in both actions seeking damages for defective materials and parts and defective and incomplete work, breach of contract and breach of guaranty and warranty.

Trial was conducted in both cases simultaneously, without a jury. In the first cause plaintiff sought a judgment for $10,666.65 and judgment was entered in its favor for $8,000. In the second cause plaintiff sought a judgment for $7,077.83 and judgment was entered in its favor for $4,000. Judgment was also entered for the plaintiff as counter-defendant on defendant’s counterclaims.

The defendant contends that (1) the judgments in both cases are against the manifest weight of the evidence, (2) the trial court manifested bias and prejudice against him, and (3) the rulings on certain objections to evidence were erroneous. He urges that the judgment entered in the first case, No. 70M1-128999, be reversed and the cause remanded for a new trial, and that the judgment in the second case, No. 70M1-131200, be reversed with directions to enter judgment in his favor.

We come now to a consideration of the assignment of errors, and first, to a determination of whether the judgments rendered are manifestly against the weight of the evidence. In this regard, it must be borne in mind that a reviewing court must presume that the trial judge heard sufficient evidence upon which to base his judgment. (Croft v. Lamkin, 112 Ill.App.2d 321, 251 N.E.2d 88.) It is, however, the right and duty of the reviewing court to set aside a finding if it is wholly unjustified by the evidence and clearly against the manifest weight thereof. (Talmage v. Union Central Life Insurance Co., 315 Ill.App.623, 43 N.E. 2d 575.) With this in mind, let us examine the facts in the record.

The parties first entered into a written contract on August 30, 1967, wherein plaintiff was to install at a cost of $44,000, all air conditioning, heating, and ventilating systems in defendant’s building at 914 East 79th Street in Chicago, following blue prints furnished by defendant. No electrical, plumbing, or trade work, with the exception of refrigeration, was included in the contract. The building consists of a restaurant on the first floor and a banquet hall on the second floor. In the rear of the building is the Blue Room. The total cost of the building was about $700,000, including the work performed under plaintiff’s contract. The plaintiff was paid in full in the amount of $44,000 for the services performed under this original contract.

The work on the second floor pursuant to the contract went almost exactly according to the plans. There was, however, a considerable amount of modification in the first-floor plan. As a result, as the work on the original contract progressed, the parties entered into a second written contract on October 24, 1968, over and above the original contract. Under the terms of this agreement, plaintiff was to provide four units and to heat and air-condition an area in the downstairs rear called the Blue Room, originally intended to be an open parking area, but which the defendant decided to use for restaurant seating. The contract price contained in this second written agreement was $10,000.

There was testimony that, while the work under this second contract was being performed, other modifications were made. Philip Kuperman testified that:

“beginning in the back area they decided to put in what they called a VIP office which needed heating and air conditioning, and we had to increase the size of the units and run in additional ducts. Mr. Leak’s office was made much larger. We had to go from two ton units to three ton units and we had to vent that and there [were] three hot water heaters and we vented those, and later we installed heating units in the vestibules.”

He claimed that this work was additional to and not covered under the second contract and amounted to approximately $7350. A claim for payment for this additional work was the substance of plaintiffs second complaint, numbered 70M1-131200. A claim for the balance of payment for performance under the $10,000 written contract was the substance of plaintiff’s first complaint, numbered 70M1-128999. The defendant asserted at trial breach of both the original $44,000 contract, for which plaintiff was paid in full, and the subsequent $10,000 contract, and he denied the existence of an oral contract for extra work.

In regard to the alleged oral contract for extras not included in either written contract, for which the trial court entered a judgment of $4,000 for plaintiff, the defendant asserts on appeal that the evidence adduced at trial cannot support a finding of such a contract. We are compelled to agree.

It is fundamental law that there must be an offer and an acceptance to create a contract. There must be mutual assent by the parties. And the burden of proving the existence of a contract and all the facts essential to the cause of action is upon the person who asserts the contract. (Dick v. Halun, 344 Ill. 163, 176 N.E. 440.) Thus the law assigns to a contractor, seeking to recover for extras, the burden of proving the essential elements. This includes a showing that (a) the work was outside the scope of his contract promises — here the two written contracts, and (b) the extra items were ordered by the owner and he agreed to pay extra sums of money by his words or conduct. (Watson Lumber Co. v. Guennewig, 79 Ill.App.2d 377, 389-90, 226 N.E.2d 270, 276.) The court in Guennewig further noted:

“The proof that the items are extra, that the defendant ordered it [sic] as such, agreed to pay for it, and waived the necessity of a written stipulation, must be by clear and convincing evidence. The burden of establishing these matters is properly the plaintiffs. Evidence of general discussion cannot be said to supply all of these elements.” 79 Ill.App.2d at 390, 226 N.E.2d at 276.

In addition, in view of the fact that changes had already been enumerated in the $10,000 written agreement signed by the parties, it would seem especially incumbent upon the plaintiff-contractor to prove that the owner authorized the additional extras sued for and agreed to pay extra for that work.

Plaintiffs complaint alleged that the extra work was performed at the special instance and request of the defendant. It stated that air conditioning units to be installed by the plaintiff were to be larger than originally contracted for and wer-e to be placed in different positions due to their increased size; that other duct and vent work was requested by the defendant along with additional air conditioning and heating units; and that plaintiff installed the equipment as requested by the defendant and did all the necessary work as to ducts, vents and sheet metal in connection therewith.

After examining the record of trial, we are unable to find that plaintiff established its right to recover for these claimed extras on any basis. It’ is undisputed that the original contract for heating and cooling materials in the amount of $44,000 was in writing and was paid. Changes agreed upon were also detailed in a written contract and payment in the amount of $10,000 for that work was designated in that contract. The claim that other additional work and materials were requested by the defendant was not supported by anything in writing, nor was there any testimony offered by plaintiff of any discussion of the details and the charges to be made. There was a complete failure to prove that an offer was made and accepted and that the defendant was apprised that the changes were extra and a fixed amount would be charged, as did occur in the second written contract for $10,000. When Philip Kuperman was asked on cross-examination whether the second contract was ever modified or amended he said, “I don’t recall.”

On the other hand the defendant testified that he made no agreements about work to be done by plaintiff other than the two written agreements. He said that he did not know that all of the air conditioning units and heaters were not included in the written contracts. Indeed the record is completely silent regarding the allegation that the defendant was apprised of the fact that these were extras and not included in the written agreements or that he agreed to pay extra for the work, either by his words or conduct. As noted earlier, general discussion cannot be said to supply all of the elements necessary to support a claim for extras (Watson Lumber Co. v. Guennewig, 79 Ill.App.2d 377, 226 N.E.2d 270; Castle Concrete Co. v. Fleetwood Associates, Inc., 131 Ill.App.2d 289, 268 N.E.2d 474), and the burden is upon the person asserting the existence of the contract (Dick v. Halun, 344 Ill. 163, 176 N.E. 440). This is more particularly true under the special circumstances here. The burden was not met. The judgment rendered in cause number 70M1-131200 in the amount of $4,000 is therefore reversed.

It is also contended that the judgment entered in case number 70M1-128999 is contrary to the manifest weight of the evidence and should be reversed and remanded for a new trial. This action was based on the second written contract in the amount of $10,000 for which plaintiff sought to receive the balance of payment due. It is undisputed that the parties entered into this agreement and the work was done by plaintiff. But defendant asserted that plaintiff breached both this contract and the original $44,000 contract by supplying defective materials and parts and performing defective and incomplete work and that plaintiff also breached guarantees and warranties given to defendant.

There was testimony presented by the defendant that much trouble was encountered with the heating and air conditioning and that the work was incomplete. The defendant, A. R. Leak, testified that the upstairs washrooms have never been air-conditioned or heated and are not properly ventilated. There was no heat in the lobby so warmers had to be installed by him. He said he notified the plaintiff that the heating and air conditioning were not working properly, but no one was ever sent out to correct them. The defendant also stated that every one of the compressors installed by the plaintiff had to be replaced at his own expense and that he was told by the plaintiff that they carried a 5-year warranty. The general contractor testified for the defendant that the heating, cooling, and ventilation was inefficient at various locations in the building. He admitted, however, that he had no particular background in heating and air conditioning, and he based his efficiency rating only on how comfortable the area felt to him personally. Another witness, a licensed heating and ventilating contractor, who inspected the premises the day before trial, testified for the defendant that the ducts were insufficiently insulated and that certain areas were insufficiently ventilated.

It appears from the record that the work under the initial $44,000 contract was completed sometime in the spring of 1968. The work under the subsequent $10,000 contract was completed in two stages — the heating by November of 1968, and the air conditioning by the following May, 1969. Philip Kuperman testified that adjustments had been made up to that time, and the units were tested when the job was completed and appeared to be working properly. He said the defendant complained of certain defective work regarding the furnace. A minor fire had damaged the humidifier and the coil and Kuperman said he replaced it. He was also called to repair a thermostat which had been knocked off the the wall, causing the heat to stop. And there was a problem in the main banquet room with circulation, which he dealt with by showing the defendant how to operate the equipment properly. The last time Kuperman was on the premises was in November, 1969, when a complaint was made about improper heating in the vestibule. This he determined was attributable to the two vestibule doors being cracked. He installed a heater there. Under the terms of the contract he was responsible for servicing the equipment for 1 year. A 1-year parts warranty given by the manufacturer to him was passed on to his customer, the defendant. There was a 1-year warranty on the compressors.

Marshal Siegal, a wholesale distributor of some of the heating and air conditioning equipment used on defendant’s building, testified that he examined the equipment after it was installed and found it to be working properly. He was also present in November, 1969, and could recall only three complaints made by the defendant. One was that a drain line could have been done a little neater. Another was that there was no return air in a small office. A door was undercut to provide a sufficient return in that room. The third item of objection related to the lack of heat in the vestibule. Siegal stated that the factory warranty constituted a 1-year warranty for replacement parts. He specifically asked the defendant if there were any problems with the equipment because it was his responsibility to see that the warranties were fulfilled, but only those three complaints were made.

The trial judge has the duty of sifting the evidence and choosing among conflicting inferences. As a finder of fact he is authorized to draw reasonable inferences, and he may disbelieve testimony contradicting evidence from which such inferences are drawn. When the evidence is contradictory this court will not substitute its judgment as to the credibility of witnesses for that of the trial court which saw and heard them, and will not disturb the findings unless they are manifestly against the weight of the evidence. (Wynekoop v. Wynekoop, 407 Ill. 219, 226, 95 N.E.2d 457, 460.) Manifest means clearly evident, clear, plain; indisputable. (Schneiderman v. Interstate Transit Lines, Inc., 331 Ill.App. 143, 147, 72 N.E.2d 705, 706.) We will not reverse and remand unless an opposite conclusion is clearly apparent. In re Estate of Meade, 17 Ill.App.2d 286, 149 N.E.2d 792 (abstract opinion).

The evidence shows that the 1-year warranty on the heating equipment expired in November, 1969, and Kuperman and other witnesses testified that, except as to a few certain objections which were corrected, the system was functioning properly at that time. Although the one year warranty on the air conditioning equipment did not expire until the following May, 1970, the defendant’s evidence of defects and inadequacies is rather general, without reference to specific dates or specific equipment. And although defendant testified that complaints were made to the plaintiff and went unanswered, none were made in writing. The court noted that it was difficult to determine whether certain of the problems encountered by the defendant were due to the plaintiff’s inadequate installation or to the architect’s plans, which were furnished plaintiff by defendant. All in all, we cannot say that a conclusion opposite to the one reached by the trial court is apparent, and we therefore affirm the judgment in case number 70M1-128999 in the amount of $8,000.

We further reject the claim that the judgment does not support the award made by the court or that it was speculative or that interest was improperly included. The court’s decision to award $8,000 on plaintiff’s claim for $10,666.65 clearly demonstrates that the court weighed the evidence and considered expenditures made by defendant. We think the amount of the judgment is not contrary to the manifest weight of the evidence and in fact is abundantly supported by the evidence.

The defendant further contends that the court, in certain of its comments during trial, manifested bias and prejudice against him. At one point during the testimony of the defendant, the court had occasion to examine certain bills included in a group exhibit of defendant. The bills were being offered to document certain expenditures the defendant made to third parties in repairing the heating and air conditioning systems installed by the plaintiff. Many were unclear as to date and as to what building of the defendant — who operated more than one business — the repairs related. The judge commented on one dated May 25, 1972, “I don’t know how that relates to the guarantee — in 1972,” and regarding another, "I believe this is a year after the work was completed.” The defendant asserts that these comments demonstrated to him that the judge had a preconceived attitude that the warranty period was only 1 year and not 5 years, before all the evidence was in on the issue.

We find this contention unjustified. These comments were merely an attempt by the judge to sort out an admittedly confused group exhibit, and perhaps help the defendant in organizing his evidence. It is hyperbole to argue that they indicated that his mind was closed to any further proof that the warranty period may have been for 5 years instead of 1 year. In fact the judge, while still examining the defendant’s group exhibit, a short time later commented: “And another [bill] from Lee Associates, $132.55, 7/12/69, 6/14/72, I don’t know whether this is a proper charge, in 1972. * ” * You still have to resolve the question of the warranty.”(Emphasis added.) Furthermore, no contention is made that any documents were improperly excluded from evidence. Indeed, because of the confusion regarding some of the bills, the defendant’s attorney withdrew the exhibit at that time and offered paid checks instead. We likewise find it extravagant to assert that the judge’s fleeting statement, in his final summation as finder of the facts, that “[t]here has been testimony that there was a warranty for a year; there’s been talk about a warranty for five years,” corroborates the contention of bias because of the characterization of defendant’s evidence as “talk.”

Defendant finally claims error in certain of the trial court’s rulings on evidence. He asserts that the plaintiff, while testifying, was allowed to answer a leading question over the objection of the defendant, and that plaintiffs witness, Marshal Siegal, was allowed to give opinion evidence over the objection of the defendant. We have examined the record closely regarding these contentions and find no grounds for mandating a reversal, nor any need to detail our conclusion.

For the reasons stated the judgment of the Circuit Court is affirmed in case number 70M1-128999 and reversed in case number 70M1-131200.

Affirmed in part and reversed in part.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    Corine Duke, Plaintiff-Appellee, v. Faith G. Paul, Defendant-Appellant.
    (No. 58628;
    First District (4th Division)
    June 12, 1974.

      Rehearing denied July 9, 1974.

    Klohr, Braun, Lynch & Smith, of Chicago (John J. Treacy, of counsel), for appellant.

      Barry H. Greenburg, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

This appeal arises from an automobile accident that occurred on February 22, 1968. On March 6, 1969, the plaintiff filed a complaint against the defendant-appellant seeking recovery for personal injury and property damage. A summons was also filed on March 6, 1969 and directed that the defendant be served at 5000 S. Cornell, Chicago, Illinois. However, it was returned “defendant not found” on April 2, 1969. An alias summons was issued on July 1, 1969, and served by the sheriff of Sangamon County on the Department of Motor Vehicles through Velma Green, agent, on July 25, 1969. There was no further action in the matter until March 2, 1971 when the case was dismissed for want of prosecution.

On March 16, 1971, the plaintiff made a motion to vacate the dismissal for want of prosecution and the trial court allowed the motion. Thereafter, service of summons was had upon the Illinois Secretary of State pursuant to the Illinois nonresident motorist statute. (111. Rev. Stat. 1969, ch. 95%, par. 10-301.) On March 25, 1971, the plaintiffs attorney filed an affidavit of compliance in which he stated that on personal inquiry at the last known address of the defendant he found that she had moved to California and that the building management had no forwarding address for her. Plaintiffs attorney also stated that on March 19, 1971, the Illinois Secretary of State received copies of the summons and complaint and on March 24, 1971, he mailed a copy of the summons and complaint to the defendant at her last known address, all in compliance with tire nonresident motorist statute.

The defendant failed to appear and on May 3, 1971, a default order was entered. On May 26, 1971, there was a prove up on the default and a judgment was entered against the defendant in the sum of $2,500, plus costs. In December of 1971, attorneys who had been retained by the defendant’s insurance company, Preferred Risk National Insurance Co. (hereinafter Preferred), entered a special appearance on behalf of the defendant and moved to quash the Secretary of State service. A petition in support of the motion was filed and the defendant’s attorney contended that the plaintiff’s affidavit of compliance did not affirmatively establish that the defendant was a non-resident of Illinois so as to bring her within the provisions of the Illinois nonresident motorist statute. It was also stated that Preferred did not learn of the purported service on the defendant, the subsequent order of default and the ex parte judgment, until December 14, 1971. The petition further stated that the last known address of the defendant was 1702 Kewald Avenue, Honolulu, Hawaii, but that Preferred had not been able to contact or secure a response from the defendant at that address. On March 27, 1972, a hearing was held on the motion to quash service and the trial court denied the motion.

On July 7, 1972, the defendants attorneys filed a motion to vacate the default judgment pursuant to subparagraph (e) of our nonresident motorist statute. (Ill. Rev. Stat. 1971, ch. 95%, par. 10 — 301(e).) In a petition supporting the motion the defendant’s attorneys stated that the defendant had moved from Illinois to Hawaii on June 30, 1968, and had arrived in Hawaii on August 3, and that since then, the defendant resided at 1702 Kewald, Honolulu, Hawaii. It was further stated, “That subsequent to the date of the accident in question, the defendant received no notice, written or oral, or by way of process served personally or by mail or otherwise of the pendency of this action against her, until February 7, 1972, when she received a letter from her insurer, Preferred Risk Mutual Insurance Company, seeking to confirm her present whereabouts.” The petition requested that the defendant be allowed to plead to the merits of the plaintiffs complaint. An affidavit of the defendant giving essentially the same information was attached to the petition. The trial court continued the motion until October 19, 1972, but gave leave to the plaintiff to take the deposition of the claims manager of Preferred and stayed all other proceedings in the matter.

In the discovery deposition of Preferred’s claims manager, a Mr. Reece, it was learned that the defendant had written a letter to Preferred on May 5, 1968, stating that over a month ago she had sent Preferred a letter from the plaintiffs lawyer and that he claimed that he had not heard from Preferred. She advised Preferred to take action quickly because she was moving from Illinois in June. It was also learned that Preferred had written a letter to the defendant’s father on August 29, 1969, informing him of the suit against his daughter and requesting a forwarding address for the defendant. This letter was returned to Preferred with a notation that the defendant was now residing at 1702 Kewald, Honolulu, Hawaii.

On November 9, 1972, a hearing on the defendant’s motion to vacate the default judgment was held. At this hearing the plaintiffs attorney informed the court of certain letters between himself, Preferred, and the defendant’s attorneys regarding whether service of summons had been effectively served upon the defendant. Plaintiffs counsel also informed the court that in 1968 and 1969 he had certain conversations with Mr. Beece in regards to locating the defendant and that Beece informed him that she was gone and counsel was “out of luck.” At the conclusion of the hearing the trial court denied the motion to vacate the default judgment. In regards to its ruling, the court stated:

“It is denied on the grounds the statute is not mandatory but leaves it to the discretion of the Court and secondly that in view of the correspondence and the documents submitted by the Plaintiff this afternoon, unchallenged by the Defendant as being proper and appropriate that there was notice through the insurance company and through the lawyers for the insurance company to the Defendant, that her rights have not been abrogated or denied in any significant way.”

The order entered by the trial court on November 9, 1972, stated that the court having heard argument on the defendant’s motion to vacate the judgment heretofore entered and or quash the service of summons, the defendant’s motion to quash the service of summons is denied and the motion to vacate the default judgment heretofore entered is denied. The defendant contends the trial court erred in denying both the motion to quash service of summons and the motion to vacate the default judgment. We do not agree.

In this case service of process was had upon the defendant through the Illinois nonresident motorist statute. The statute provides for a means of substituted service of process when a cause of action arises out of the use and operation of a motor vehicle on the highways of Illinois by a person or his duly authorized agent or employee who is a nonresident of this State at the time the cause of action arises or who subsequently becomes a nonresident. In such cases service of process can be accomplished by serving a copy on the Secretary of State or any employee designated by him to accept such service for him or by filing a copy of the service in the Secretary of State’s office together with the prescribed fee. The statute also requires that within 10 days after the service is served or filed with the Secretary of State that the plaintiff send to the defendant by registered mail at the defendant’s last known address, notice of such service and a copy of the summons. The plaintiff is also required by the statute to attach an affidavit of compliance to the summons. The defendant maintains that in regards to the motion to quash service of summons there was nothing in the record at the time the default judgment was entered that established that the defendant was, as of March, 1971, a nonresident of Illinois and, therefore, the trial court erred in not quashing the service of summons. This contention is totally devoid of any merit.

In deciding whether the trial court obtained jurisdiction over the defendant, it is necessary to examine the plaintiffs affidavit of compliance because as was stated in Rompza v. Lucas, 337 Ill.App. 106, 116, 85 N.E.2d 467, 472 (1949), “It is therefore from the contents of the affidavit of compliance that the court determines its jurisdiction.” The plaintiff’s attorney, as stated previously, filed an affidavit of compliance on March 25, 1971, in which he stated that the defendant resided at 5000 Cornell, Chicago, Illinois, but that on due inquiry she could not be found in Illinois. It was further stated, “That your affiant on personal inquiry at the last known address of the defendant found she moved to California, the building management had no forwarding address.” Plaintiffs counsel also stated that on March 19, 1971, the Secretary of State received copies of the summons and complaint and that on March 24, 1971, he sent a copy of the summons and complaint to the defendant at her last known address. It is clear from the record that the defendant was as of March, 1971, a nonresident of Illinois, and therefore, substituted service could be accomplished on her pursuant to the provisions in our nonresident motorist statute. Plaintiffs counsel made a personal inquiry at the defendant’s last known address and was told she had moved out of Illinois. This was sufficient information for the plaintiff to then make use of the Illinois nonresident motorist statute. The affidavit of compliance also establishes that all the other requirements of the statute were fulfilled. The defendant alludes to the fact that the notice sent to the defendant was sent to 5000 Cornell, Chicago, Illinois, where she did reside. However, this was the last known address of the defendant and all the statute requires is to send the notice to the defendant’s last known address. As was stated in Barth v. Nitke, 267 Minn. 331, 337, 126 N.W. 2d 452, 456 (1964), in which the Minnesota Supreme Court interpreted the Illinois nonresident motorist statute, “The statute does not require that notice be sent to defendant’s actual residence but only to his “last known address’. (Ill. Rev. Stat. 1963, ch. 95%, §9 — 301(b).) All that is required is that plaintiff comply in good faith based on the best information he has been able to secure.” (Emphasis in original.) We are of the opinion that the plaintiff in the case at bar proceeded in good faith and that all the requirements of the Illinois nonresident motorist statute were met. The trial court did not, therefore, err in denying the defendant’s motion to quash the service of summons.

The defendant also contends that the trial court erred in denying the motion to vacate the default judgment. The defendant’s contention is that pursuant to subparagraph (e) of our nonresident motorist statute the trial court should have vacated the default judgment and given her leave to plead to the merits of the case. The statute in pertinent part states:

“When a final judgment is entered against any non-resident defendant who shall not have received notice and a copy of the process by registered mail, required to be sent him as above provided, and such person, his heirs, devisees, executor, administrator or other legal representatives, as the case may require, shall within one year after the notice in writing given him of such judgment, or within 5 years after such judgment, if no such notice has been given, as aforesaid, appear in open court and petition to be heard touching the matter of such judgment, and shall pay such costs as the court may deem reasonable in that behalf, the person so petitioning may appear and answer the plaintiff’s allegations, and thereupon such proceeding shall be had as if the defendants had appeared in due season and no judgment had been rendered. And if it appears upon the hearing that such judgment ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just; otherwise, it shall be ordered to stand confirmed against such defendant. * * *” (Ill. Rev. Stat. 1971, ch. 9572, par. 10 — 301(e).)

The defendant’s contention is that she did not receive the requisite notice and a copy of the process by registered mail and, therefore, the default judgment should have been vacated. However, a careful reading of the statute reveals that when a defendant does not receive the notice and a copy of the process by registered mail he is not automatically entitled to have the judgment vacated. The statute allows such an unnotified defendant to appear and answer the plaintiff’s allegations and then a proceeding shall be had as if the defendant had appeared in due season and no judgment had been rendered. At this proceeding if it appears that the judgment should not have been entered against the defendant then it can be vacated, altered or amended; otherwise it stands as originally entered. There is, therefore, no automatic right to have a default judgment vacated upon a showing that the defendant did not receive the notice and a copy of the process as required by the statute.

The defendant maintains she was a nonresident defendant who did not receive notice and a copy of the process by registered mail. The petition in support of the motion to vacate and the defendant’s affidavit attached thereto stated that defendant had not received any notice or communication concerning the accident or law suit until she received a letter from Preferred in February of 1972. However, the trial court, as previously stated, was of the opinion that in view of the correspondence and the documents submitted by the plaintiff at the hearing on the motion to vacate the default judgment and which were unchaffenged by the defendant that there was notice to the defendant through Preferred and the attorneys for Preferred. We agree.

Subparagraph (e) of our nonresident motorist statute was intended to afford an unnotified defendant an opportunity to plead to the merits of a case and avoid a default judgment. In this respect the statute is in agreement with the general proposition of law that courts do not favor default judgments. However, this section of the statute was not intended to reward dilatory and evasive tactics of a defendant’s insurance carrier. The record in the case at bar shows that the defendant’s insurance carrier, Preferred, knew of the pendency of the suit and as of May 5, 1968, knew that the defendant was leaving the State of Illinois. Preferred also knew in late August of 1969 the new address of defendant in Hawaii. There was also correspondence between the plaintiff’s attorney, Preferred, and the attorneys for the defendant as to whether proper service had been made upon the defendant. In addition, plaintiffs attorney contacted Mr. Beece, the claims manager of Preferred, in regards to locating the defendant. Preferred had a contractual obligation with the defendant to defend this suit and indeed Preferred retained attorneys on defendant’s behalf. However, having all the knowledge previously cited, Preferred chose to do nothing until a default judgment was entered. It was not the intention of our State Legislature in providing a means for an unnotified defendant to avoid a default judgment to allow a factual situation such as the case at bar to come within the ambit of section (e) of our nonresident motorist statute. A defendant’s insurance carrier cannot embark upon its contractual obligation to defend a suit and then do nothing until a default judgment is entered and then seek to utilize section (e) of the Illinois nonresident motorist statute. To allow such actions would pervert the purpose of the statute and sanction dilatory and evasive conduct. This cannot be done. Therefore, it is the opinion of this court that the trial court was correct in denying the defendant’s motion to vacate the default judgment.

Judgment affirmed.

DIERINGER and JOHNSON, JJ., concur.

       The last known address for the defendant was 5000 Cornell, Chicago; Illinois.

       The record is silent and counsel for neither side has adequately informed this court as to how the issue of quashing the service of summons was raised again in the trial court.


author: Mr. JUSTICE DIERINGER

text:
    Donald C. Dowling, Plaintiff-Appellant, v. Metropolitan Structures, Defendant-Appellee.
    (No. 59632;
    First District (4th Division)
    June 12, 1974.
    Crowley, Barrett & Karaba, of Chicago (Frank A. Karaba and Bruce M. Friedman, of counsel), for appellant.
    Antonow & Fink, of Chicago (Joseph P. Antonow, Joseph H. Fink, and David D. Rosenstein, of counsel), for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. Plaintiff filed a declaratory judgment action to determine his right, if any, to a % of 1 percent beneficial interest in a trust holding title to Two Illinois Center, a Chicago high-rise office building developed by the defendant. Both parties filed motions for summary judgment. In granting defendant’s motion and denying plaintiff’s motion, the trial court ruled the defendant validly exercised an option to repurchase plaintiff’s interest in said property.

The issues presented on appeal are (1) whether the word “employment” in paragraph 9 of the agreement entered into by the parties meant employment by a particular limited partnership or any of a family of related entities; and (2) whether the option to repurchase, contained in paragraph 9 of the agreement, was timely and effectively exercised.

The plaintiff, Donald C. Dowling, is an attorney licensed to practice law in Illinois. The defendant, Metropolitan Structures, is an Illinois limited partnership, and is a name used for and to cover the overall activities of a group of interrelated partnerships and corporations having offices at 111 E. Wacker Drive, Chicago, Illinois. Plaintiff became a full-time employee of the defendant on April 28, 1969, for the purpose of rendering legal services for defendant. The defendant owned all the stock of an Illinois corporation, Metropolitan Management Company, which was engaged in the business of real estate management. In November and December of 1970, plaintiff, defendant, and Management entered into negotiations regarding plaintiffs transfer from defendant in order to assume the duties of director of leasing of Management. At the time plaintiff was offered the new position he was told he was to receive a % of 1 percent beneficial interest in a certain land trust holding title to an office building commonly known as Two Illinois Center. The transfer of the interest to the plaintiff was to be confirmed subsequently in writing. In January, 1971, plaintiff was appointed director of leasing. During April, 1971, defendant delivered to plaintiff the written agreement which set forth the terms and conditions of the transfer of the interest to plaintiff. Plaintiff strenuously objected to paragraph 9 of the agreement in which the defendant reserved an option to repurchase plaintiffs interest in Two Illinois Center for the sum of $1. Despite his objection, the plaintiff executed the agreement without any change in paragraph 9. On October 1, 1971, the plaintiff voluntarily terminated his employment to enter the private practice of law. On November 10, 1971, defendant sent plaintiff a certified letter exercising defendant’s option to repurchase plaintiff’s interest in Two Illinois Center in accordance with the terms of paragraph 9 of the agreement. The letter was accompanied by the defendant’s check in the amount of $1 payable to the plaintiff. By letter dated November 23, 1971, the plaintiff rejected defendant’s attempted tender, returned the check, and informed defendant the purported exercise of the option to repurchase was of no force or legal effect. Plaintiff then instituted a suit seeking a declaratory judgment to the effect that defendant’s attempted exercise of its option was not valid. On July 19, 1973, a declaratory judgment was entered holding the defendant’s exercise of the option to repurchase valid to divest plaintiff of his interest.

The plaintiff contends the word “employment,” as it is used in paragraph 9 of the agreement, means “employment by Metropolitan Structures, an Illinois Limited Partnership.” In support of his contention, the plaintiff cites paragraph 9 of the agreement, which in pertinent part states:

“* * * in the event that on or before December 31, 1973, [Plaintiff] shall terminate his employment by his own act or such employment shall be terminated by Structures [Defendant] for reasonable cause, [Defendant] shah have the option for a period of ninety (90) days following such termination, to repurchase the interest of [Plaintiff] for One Dollar ($1.00) * *

Plaintiff argues the above language supports the conclusion that the word “employment” must refer to employment by the defendant. In further support of his contention, the plaintiff cites the decision in Lauer v. Blustein (1971), 1 Ill.App.3d 519, wherein the appellate court held the proper interpretation of a contract which is unambiguous and complete on its face must be ascertained solely from the language contained therein. Plaintiff maintains since the word “employment” must mean employment by the defendant, then the 90-day option period, by terms of the agreement, commenced to run in January, 1971, on the date plaintiff terminated his employment with the defendant. Plaintiff contends, therefore, the defendant’s option to repurchase plaintiff’s interest in Two Illinois Center was not timely and effectively exercised on November 10, 1971.

We do not agree with the plaintiff’s contention. Paragraph 9 of the agreement gives rights to Metropolitan Structures “in the event that on or before December 31, 1973” the plaintiff “shall terminate his employment.” Such provision would be meaningless if “his employment” as referred to therein is not a continuing employment but one which had already terminated. In Bowler v. Metropolitan Sanitary District (1969), 117 Ill.App.2d 237, the appellate court held “every provision in a contract must be given meaning and effect because it is assumed that all provisions were inserted deliberately and for purpose.” Paragraph 9 of the agreement was included to provide the plaintiff with an incentive not to quit his employment prior to December 31, 1973. At the time the plaintiff executed the agreement in April, 1971, he fully understood what was intended. A review of the record indicates the expressed intention and understanding of the parties was clearly set forth in the plaintiffs deposition:

“Q. And what in particular disturbed you about paragraph 9?
A. The fact that my interest in Two Illinois Center appeared on the face of that paragraph 9 not to be vested in me; that it was divestible by the payment of a dollar in the event that my employment terminated * * *, and what concerned me most about this was that the wonderful opportunity I foresaw at Metropolitan Structures took a three-year setback * * *.”

By his above-mentioned statement, the plaintiff revealed be fully understood the meaning of paragraph 9 and by his signature to the agreement he committed himself to abide thereby. Further review of the record reveals that in a letter to a Mr. William J. Cavanaugh dated September 29, 1971, the plaintiff informed Mr. Cavanaugh: “I will soon be leaving Metropolitan Structures to return to the private practice of law.” Finally, when the plaintiff terminated his employment, he personally issued a press release dated October 1, 1971, which he sent to various newspapers, wherein he stated his previous employment was “Vice President-Law for Metropolitan Structures.” It is evident from the facts presented in the case at bar that the plaintiff, an attorney licensed to practice law in Illinois, fully understood the meaning of paragraph 9 when he executed the agreement in April, 1971. It is clear paragraph 9 referred to an existing and continuing employment relationship and not to an employment which had been terminated before the agreement was signed. By his own admissions, the plaintiff continued to hold himself out as an employee of Metropolitan Structures. Therefore, the option to repurchase the plaintiffs interest, exercised by the defendant on November 10, 1971, was timely and effective.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: Mr. JUSTICE BURKE Mr. JUSTICE HALLETT

text:
    James Caporale et al., Plaintiffs-Appellees, v. Shannon Plumbing Company, Inc. et al., Defendants-Appellants.
    (No. 59407;
    First District (1st Division)
    June 17, 1974.
    HALLETT, J., specially concurring.
    Latchford, Rice & O’Brien, of Chicago (James B. Rice, of counsel), for appellants.
    Arnold and Kadjan, of Chicago (Daniel N. Kadjan, of counsel), for appellees.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

Plaintiffs, as trustees of various funds, filed a complaint seeking to recover amounts which the defendants failed over a period of time to contribute to the funds, as required by collective bargaining agreement. After a bench trial, judgment was entered for the plaintiffs and against defendants, who appeal on the ground that a former adjudication as to part of the period involved bars recovery as to that part.

In 1971 the plaintiffs, as trustees of the Laborers’ Pension Fund Laborers’ Welfare Fund and Laborers’ Holiday Fund of the Construction and General Laborers’ District Council of Chicago and Vicinity, sued for the recovery of amounts which the defendants were required but failed to contribute to the various funds represented by the plaintiffs. The plaintiffs’ first suit in the Municipal Division of the Cook County Circuit Court was for contributions due in the period June 1, 1968, to November 30, 1970. The plaintiffs instituted a second suit in the Law Division of the Cook County Circuit Court for amounts due in the period June 1, 1968, to April, 1973. The two suits were consolidated on October 4, 1972, and the suit in the Municipal Division was dismissed with prejudice. On April 17, 1973, judgment was entered in favor of the plaintiffs in the second suit. The amount awarded as damages represented contributions not paid during the period June 1, 1968, to April, 1973. The defendants filed a motion to vacate the judgment on the grounds, among others, that the dismissal of the Municipal Division suit with prejudice was an adjudication on the merits in favor of the defendants. The defendants argue on this appeal that the judgment award in the second suit should be reduced by the amount attributable to the period involved in the Municipal Division suit — June 1, 1968, to November 30, 1970.

The issue before this court is whether the trial court erred in refusing to reduce the judgment in light of the former adjudication. Res judicata is a doctrine which reflects the judicial policy in favor of the finality of judgments. It allows a party to prevent repeated litigation of the same cause of action. Before enactment of section 48 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 48), res judicata had to be raised, if at all, by the pleadings or, if there were no opportunity to plead it, by evidence at trial. (People v. J. B. Inderrieden Co., 375 Ill. 458, 31 N.E.2d 580.) Section 48 provides that res judicata may also be raised by a motion to dismiss.

The effect of a timely raising of res judicata has been expressed by this court:

“It [res judicata] is a controlling defense and will, if found actually to exist, bar the suit by a speedy determination of it. It is apparent that if the issues between plaintiff and defendants have been adjudicated in a former action at law or suit in equity in favor of defendants, defendants have thereby obtained substantial rights of which they ought not to be deprived. Litigation the second time of the same questions between the same parties would deprive them of such rights. Defendant litigants have just as much right to have litigation ended as plaintiffs have to begin it.” Bernick v. Chicago Title & Trust Co., 325 Ill.App. 495, 501, 60 N.E.2d 442.

The “substantial rights” bestowed by a former adjudication can, however, be waived by failure to raise the defense of res judicata. (Hardware Dealers Mutual Fire Insurance Co. v. Ross, 129 Ill.App.2d 217, 262 N.E.2d 618.) This brings us to the question of whether the defendants here effectively waived their right to raise this defense.

The defendants did not raise the prior adjudication until after judgment was rendered in the second suit. No reason is given for their silence. Res judicata is invoked to prevent the re-litigating of matters which have gone to judgment on the merits. Participation in such re-litigation through judgment on the merits, with no reason given for the failure to raise it, must be deemed a waiver of res judicata. Such a participation cannot after judgment be heard to complain that res judicata would have barred the litigation of a part of it.

The defendants’ argument that the doctrine of res judicata applies in this case cannot be sustained. We agree that dismissal of a cause with prejudice is deemed to be an adjudication on the merits. (Bernhardt v. Fritzshall, 9 Ill.App.3d 1041, 293 N.E.2d 650.) But where, as here, the parties stipulate to dismiss the suit with prejudice as a matter of administrative convenience, they wiH be estopped from arguing that this was an adjudication on the merits.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

GOLDBERG, J., concurs.

Mr. JUSTICE HALLETT

specially concurring:

I concur in the foregoing judgment and in most of the reasoning but would add one further ground. In my opinion, an “agreed” or “stipulated” order or judgment does not require the acquiescing court judicially to decide anything and the result is therefore not res judicata in the true sense. As was said in Granzow v. Village of Lyons, Ill. (7thCir. 1937), 89 F.2d 83, 86 (in reversing a judgment based on res judicata):

«o # s The order was the consequence of consent and not of judgment by the court. Consequently it could not be treated as res judicata. Lawrence Manufacturing Co. v. Janesville Cotton Mills, 138 U.S. 552, 11 S.Ct. 402, 34 L.Ed. 1005; San Francisco v. Le Roy, 138 U.S. 656, 11 S.Ct. 364, 34 L.Ed. 1096.”