author: Mr. JUSTICE JOHNSON

text:
    Louise Pittel, Plaintiff-Appellee and Cross-Appellant, v. Board of Education of School District 111, Cook County, Defendant-Appellant and Cross-Appellee.
    (No. 59779;
    First District (4th Division)
    June 26, 1974.

      Scariano and Gubbins, of Chicago Heights (Bruce C. Mackey, of counsel), for appellants.
    Gilbert Feldman, of Kleiman, Cornfield and Feldman, of Chicago, for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

This action was brought to seek administrative review of the school district’s decision to dismiss the plaintiff, a tenured teacher. The trial court ruled that the Board’s decision was not against the manifest weight of the evidence, but it nevertheless reversed on the ground that the cause for dismissal was remediable. The court further found that the Board did not violate plaintiff’s right to freedom of association and that the Board did not fail to accord plaintiff due process of law.

On appeal, the following issues are presented for review:

1. Was the Board’s decision contrary to the manifest weight of the evidence?

2. Was the cause for discharge remediable?

3. Did the Board violate plaintiffs right to freedom of association?

4. Did the Board fail to accord plaintiff due process of law?

At the time of her termination, plaintiff was employed by the defendant School Board as a teacher with tenured status. During her 13 years of teaching in the district, she received no disciplinary sanctions of any kind from the Board or the administration. It is undisputed that her professional evaluations as a teacher were very good.

The Illinois Federation of Teachers, Local 943, is the collective bargaining unit which represents the teachers in School District 111. Plaintiff, an active member, held various offices in the local chapter and served as chairman of the union negotiating committee. In this capacity, she negotiated all four of the collective bargaining contracts between the union and the Board.

The coUective bargaining agreement provides for sabbatical leaves. It establishes a sabbatical leave committee which consists of the superintendent, an elementary school principal, and three teachers. The committee makes recommendations to the Board regarding sabbaticals. The agreement provides, “A sabbatical leave may be granted for formal study or research work or for travel, either foreign or domestic, in accordance with the applicable provisions of the School Code.” It further states that a teacher on sabbatical leave shaU receive her salary. The School Code provides that a sabbatical “* ” * leave shall be conditional upon a plan for resident study, research, travel or other activities proposed by the applicant and deemed by the Board to benefit the school system * *

Pursuant to the terms of the collective bargaining agreement and the School Code, plaintiff requested a sabbatical leave for the 1971-72 academic year. On December 18, 1970, she requested a sabbatical leave “for the purpose of travel on the North American Continent and Europe.” The superintendent advised the sabbatical leave committee that the Board probably would not approve applications requesting sabbatical leaves for purposes of travel but would only consider applications for purposes of study. Therefore, plaintiff was advised to resubmit her application stating the name of the school she would be attending and her “plan of study leading to a degree.”

Plaintiff complied with the committee’s instructions, although prior to that time no specificity apparently had been required regarding how teachers on sabbatical leaves would spend their time. On February 10, 1971, she submitted another written application for sabbatical leave along with a “Program of Studies for Advanced Degree” from Chicago State College. In her application plaintiff advised the superintendent, “It is my intention to take courses leading to a Master’s Degree in Education at Chicago State College.”

Subsequently, plaintiff attended a meeting with the sabbatical leave committee at which her program of advanced studies was discussed. She advised the committee that the courses needed for her degree were fisted in the plan submitted to the committee. Her plan listed ten courses totaling 30 semester hours, to be completed “* * * at Chicago State College, 6800 S. Stewart Avenue, Chicago, Illinois.” She further stated, “I could not assure the committee that I would complete that program during that year, during that coming year.” The School Code’s provisions on sabbatical leaves were read aloud to her at that meeting.

The committee then decided to recommend to the Board that plaintiffs request for a sabbatical leave be approved, and the Board granted its approval without discussion.

While on sabbatical leave for the 1971-72 academic year, plaintiff received her full salary. However, she successfully completed only 2 of the 10 courses listed in her approved plan. She took one additional course which was not on the list submitted to the committee and which she apparently had taken previously. During the fall 16-week trimester, from September 7, 1971, to December 23, 1971, plaintiff took two courses consisting of 6 hours. During the winter 16-week trimester, from January 3, 1972, to April 31, 1972, she took another course consisting of 3 hours. She did not attend the third 8-week trimester, from May 1, 1972, to June 24, 1972. She did not qualify as a full-time student during either of the two trimesters she attended classes, because Chicago State College requires at least 9 hours a trimester for full-time students while plaintiff took only 6 hours and 3 hours respectively. Moreover, none of the three courses taken by plaintiff were completed at the main campus of Chicago State College located at 6800 S. Stewart Avenue in Chicago. Instead, plaintiff attended evening classes at an extension of Chicago State that was located within the geographic boundaries of the defendant school district.

The Board first became aware of plaintiffs academic work for the 1971-72 school year in September, 1972, when it received a copy of her transcript. On September 26, 1972, the Board adopted a dismissal resolution for cause, effective December 8, 1972. The resolution charged plaintiff as follows:

1. Failure to comply with her written and approved plan; failure to attend Chicago State full time and failure to devote the entire period of the leave to the purposes for which it was granted;

2. Failure to report to her superiors that she was not following her approved plan;

3. Incompetence;

4. Negligence;

5. Insubordination;

6. Unprofessional conduct; and

7. The best interests of the school required her dismissal.

The September 26 resolution also contained an express finding that the causes for dismissal were not remediable.

Pursuant to § 24 — 12 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 12), plaintiff was given a notice of dismissal. She requested and was given a bill of particular's and a public hearing. An attorney was appointed by the Board to serve as the hearing officer. Plaintiff was present at the hearing and was represented by counsel.

Plaintiff’s position at the hearing was that she fulfilled the requirements of her sabbatical leave because she took “some courses” leading to a Master’s Degree in Education. Her testimony was that she assumed the two-16 week trimesters satisfied a year’s work and that it was her understanding the third trimester was an additional period of time for students to take extra courses or “make-up” courses. Ten to 15 days of the 8-week trimester plaintiff did not attend extended beyond the district’s calendar, although the district began 8 days earlier than the beginning of classes at Chicago State College in that year.

After the hearing, the Board passed a resolution which found plaintiff guilty of all the charges set forth in its September 26, 1972, resolution except incompetency and insubordination. On December 4, 1972, the Board issued its decision dismissing plaintiff from her position as a tenured teacher.

Plaintiff then filed a complaint for administrative review of the Board’s decision. Her complaint alleged, inter alia, that the Board’s decision was arbitrary in that she was fired without just cause, that the decision of the Board was contrary to the manifest weight of the evidence, and that the causes were remediable.

After considering written briefs and hearing oral arguments, the trial court found that the Board’s decision was supported by the evidence. It also found:

“* * * [Tjhat in accepting the facts that the [Board’s] findings were correct, that the conduct of the petitioner here, the plaintiff during this period was that conduct was subject to remedial action. The court remands this to the Board to consider appropriate remedial action. I don’t know if it is proper for this court to suggest — I think a tenure teacher of 13 years deserves at least the opportunity to remedy this action by perhaps returning the salary and taking make-up courses.”

The court further found that the Board did not violate plaintiff’s right to freedom of association and that it did not fail to accord her due process of law.

The Board appealed from the holding that the causes were remediable. Plaintiff cross-appealed from the finding that the Board’s decision was not contrary to the manifest weight of the evidence, that the Board did not violate her right to freedom of association, and that the Board did not fail to accord her due process of law.

The first question we shall discuss is whether the decision of the School Board was contrary to the manifest weight of the evidence. In essence, the Board’s decision to dismiss plaintiff was based on its findings that she did not devote full time to the program that had been approved and that she faded to report the change in her plans to her superiors. Thus, the Board concluded, plaintiff faffed to comply with the foUowing provisions of the School Code regarding sabbatical leaves:

“The [sabbatical] leave shall be conditional upon a plan for resident study, research, travel or other activities proposed by the apphcant and deemed by the board to benefit the school system, which plan shaH be approved by the board and not thereafter modified without the approval of the board.
* • •
Unless justified by illness or incapacity, failure of any person granted a leave under this Section to devote the entire period to the purposes for which the leave was granted shaH constitute a cause for removal from teaching service.” Ill. Rev. Stat. 1971, ch. 122, § 24 — 6.1.

After careful consideration of the record before us, we find that the Board’s decision was not contrary to the manifest weight of the evidence. The plan of study which was submitted by plaintiff and approved by the Board listed 10 courses leading to a Master’s Degree in Education. Yet, plaintiff enroHed in only 2 of the 10 courses which the Board approved. Although the purpose for her sabbatical leave was resident study, the two courses that plaintiff did complete were not taken in residence. The record shows that she did not enroH in sufficient courses to satisfy the college’s requirements for fuH-time study and that the classes met once per week at an extension school located near the district in which plaintiff had been employed as a teacher. Further, plaintiff did not advise her superiors of the change in her plans or the reduced number of courses that she was taking.

Plaintiff contends that the Board’s findings were arbitrary. She argues that there was an absence of standards in the district governing sabbatical leaves prior to the year in which she applied and, further, that the Board made an ex post facto determination of what constituted the “entire period.”

In our opinion, this argument is without merit. We think the record clearly shows that plaintiff knew what was expected of her at the time the leave was granted. She testified that the statutory provision regarding sabbatical leaves was read aloud to her at the meeting she attended with the sabbatical leave committee.

We think that the statute, which was read aloud to plaintiff, clearly sets forth the conditions and terms under which she was granted a sabbatical leave. It advised plaintiff that she could not modify the plan approved by the Board without obtaining Board approval of the modification, yet it is undisputed that plaintiff did not discuss the change in her program of study with her superiors. The statute further advised plaintiff that failure to devote the entire period of the leave to the purpose for which it was granted constituted a cause for removal.

Plaintiff does not allege that she failed to enroll in the courses listed in her plan because of illness, incapacity, or any other reason. Instead, she asserts that she had no notice of what constituted the “entire period” of the leave prior to her dismissal and that she felt she had satisfied the requirements of her leave by taking “some courses.” It is inconceivable to us that plaintiff could have thought three courses taken during the evening would constitute full-time resident study, and we do not feel that the Board or the trial court were required to accept her explaination. Moreover, since plaintiff received her full salary during the entire period of the leave, we feel it was incumbent upon her to inquire of the Board whether or not “some courses” constituted the entire period.

In view of the foregoing, we affirm the ruling of the trial court that the Board’s decision was not contrary to the manifest weight of the evidence.

The trial court reversed the Board’s finding that the causes for dismissal were irremediable, and the Board appeals.

A finding of irremediability by a school board is subject to judicial review. However, this finding involves an exercise of judgment and is not to be reversed by the courts unless the finding is manifestly against the weight of the evidence. Yuen v. Board of Education (1966), 77 Ill.App.2d 353, 358, 222 N.E.2d 570, 572; Last v. Board of Education (1962), 37 Ill.App.2d 159, 164, 185 N.E.2d 282, 284-85; Keyes v. Board of Education (1959), 20 Ill.App.2d 504, 514, 156 N.E.2d 763, 768; Jepsen v. Board of Education (1958), 19 Ill.App.2d 204, 208, 153 N.E.2d 417, 419.

In Meridith v. Board of Education (1955), 7 Ill.App.2d 477, 486, 130 N.E.2d 5, 10, the court stated:

“The best interest of the schools of the district is the guiding star of the Board of Education and for the courts to interfere with the exercise of the powers of the Board in that respect is unwarranted assumption of authority and can only be justified in cases where the Board has acted maliciously, capriciously and arbitrarily.”

In our opinion, there is sufficient evidence in the record to support the Board’s finding that plaintiffs conduct was irremediable. The sabbatical leave section of the School Code, which plaintiff testified was read aloud to her, expressly stated that the failure to comply with its terms “shall constitute a cause for removal from teaching service.” (Ill. Rev. Stat. 1971, ch. 122, § 24 — 6.1.) Plaintiff submitted a plan for full-time resident study, yet attended school part time on a non-residency basis and did not advise the Board of her reduced class program. Further, the record shows that plaintiff stopped taking classes 56 days prior to the end of the school term, although her salary continued during this period. We think this pattern of conduct was sufficient to support the Board’s finding of irremediability.

In Yuen v. Board of Education of School District No. 46 (1966), 77 Ill.App.2d 353, 222 N.E.2d 570, an unauthorized leave of 1 day was found to be irremediable. Here, plaintiff failed, without authority, to perform her teaching duties for 52 days during which she was not enrolled in any classes. In view of the foregoing, we think the Board’s decision of irremediability was not against the manifest weight of the evidence.

Plaintiff argues that the remediable cause provision contained in section 24 — 12 of the School Code is applicable to the subject matter in the instant case. Pursuant to that section, she argues, she should have been given notice of the dischargeable conduct and the opportunity to take corrective action.

The section upon which plaintiff relies specifies the procedure to be followed in dismissing a tenured teacher, but it does not in specific terms define what constitutes a remediable cause. That section provides in pertinent part:

“Notwithstanding the entry upon contractual continued service, any teacher may be removed or dismissed for the reasons or causes provided in Section 10 — 22.4 in the manner hereinafter provided. * * * Before service of notice of charges on account of causes that are considered remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.” Ill. Rev. Stat. 1971, ch. 122, §24 — 12. (Emphasis added.)

Section 10 — 22.4, referred to in the foregoing provision, gives a school board the following authority:

“To dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause and to dismiss any teacher, whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it, subject, however, to the provisions of Sections 24 — 10 to 24 — 15, inclusive;”

We find it significant that the causes for dismissal set forth in section 10 — 22.4 are general terms subject to different interpretations. To limit this broad language, section 24 — 12 provides that a tenured teacher must be given a reasonable warning of the objectionable conduct. The relationship between a board’s general power to dismiss under section 10— 22.4 and the duty to give warning where the causes are remediable was discussed by the court in Keyes v. Board of Education (1959), 20 Ill.App.2d 504, 508, 156 N.E.2d 763, 765-66, wherein the court said:

“As a safeguard against the arbitrary and capricious exercise of such power, the Act requires that if the causes assigned for dismissal of a teacher are remediable, the Board before serving notice of charges must give such teacher a written warning, stating the specific causes which, if not remedied, may result in charges. The underlying reason for such provision, is the fact that the causes for dismissal referred to in Secs. 6 — 36 and 7 — 16 [presently Section 10 — 22.4] of the School Code are general in their nature.” (Emphasis supplied.)

In contrast to section 10 — 22.4, the section pertaining to sabbatical leaves specifically defines the cause for dismissal. This section does not state that warnings are required in cases arising under it. Since this section, which specifically defines the cause for dismissal, was read aloud to plaintiff prior to granting her leave, we find no merit in her claim that she was not warned in advance of the consequences of her conduct.

We are not unsympathetic to the trial court’s feeling that plaintiff deserved an opportunity to remedy her misconduct in view of her 13 years of teaching experience in the district. However, the language of the statute is clear. The legislature was cognizant of the possibility that a teacher might promise to devote the entire period of the leave to resident study but then use the paid leave for other purposes. The penalty for this type of conduct was set forth in unequivocal terms. The statute provides that such conduct would be cause for dismissal.

Accordingly, we reverse the trial court’s finding that the causes for plaintiffs dismissal were remediable.

Thirdly, plaintiff contends that the conduct of the School Board was violative of her constitutional right to freedom of association. She alleges that the Board dismissed her in retaliation for her union activities, in violation of the freedom of association clause in the First Amendment of the Constitution of the United States.

We find no evidence in the record to support this allegation. In fact, plaintiff testified that she enjoyed very cordial relationships with the Board.

Since the record does not disclose any evidence to support plaintiffs assertion that the Board’s motivation in dismissing her was retaliatory, we affirm the trial court’s finding that there was no violation of her first amendment rights.

Finally, plaintiff argues that the Board deprived her of property without due process of law. She concedes that the Board essentially followed the procedures for dismissal provided in the School Code (Ill. Rev. Stat. 1971, ch. 122), but, nevertheless, urges us to reverse because the hearing was held before the Board.

A similar argument was before this court in Tetmeir v. Board of Education (1972), 5 Ill.App.3d 982, 986, 284 N.E.2d 380, 383. There, plaintiff contended that the board was not the proper party to conduct a hearing regarding his dismissal because the board had originally passed the resolution relieving him of his duties. This court stated:

“This contention ignores the fact that a school board is charged with the responsibility of dismissing a teacher whenever, in its opinion, the interests of the schools require it,’ (Section 10 — 22.4 of the School Code, Ill. Rev. Stat., Ch. 122), and the school board has been held to be the trier of facts under Section 24 — 12 of the School Code. (Yuen v. Board of Education of School District No. 46 (1966), 77 Ill.App.2d 353.)”

Moreover, in Lombardo v. Board of Education (1968), 100 Ill.App.2d 108, 115, 241 N.E.2d 495, 498, the court stated:

“The record discloses the hearing was conducted strictly in accordance with the provisions of the Teacher Tenure Act, which safeguards the rights of both Board and Teacher, and carefully delimits the nature of dismissal proceedings * * *. We are not at liberty to interfere with the discretionary authority vested in the School Board absent arbitrary or capricious action * *

In the present case, the record shows that the Board fully complied with the procedural requirements of the Teacher Tenure Act. That Act has repeatedly been held to meet the standards of due process. Therefore, we affirm the trial court’s finding that the Board did not violate the plaintiffs right to due process.

We affirm the trial court’s findings that the Board’s decision was not contrary to the manifest weight of the evidence, that the Board did not violate plaintiffs right to freedom of association, and that the Board did not fail to accord plaintiff due process of law. The finding that the cause for discharge was remediable is reversed.

Affirmed in part; reversed in part.

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

       Ill. Rev. Stat 1971, ch, 122, J 24 — 1 et seq.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE HAYES

license: Public Domain

text:
    Henry Harden et al., Plaintiffs, v. Louis Desideri et al., Defendants — (William J. Bradford et al., Counterplaintiffs-Appellants, v. Louis Desideri et al., Counterdefendants-Appellees.)
    (No. 57415;
    First District (2nd Division)
    June 28, 1974.

      Chester A. Lizak, of Chicago, for appellants.
    Alan M. Depcik, of Katz, Karacic & Mansfield, of Chicago, for appellee Louis Desideri.
    Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of Chicago (C. Barker Rhodes, Jr., and Mitchell L. Hollins, of counsel), for appellee Draper & Kramer.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

William J. Bradford, Franklin B. Evans, Jr., Charles L. Bradford, and Robert O. Evans, appellants, were apparent successor beneficiaries of a certain land trust agreement dated 24 May 1940, and known as Trust Number 32308, wherein the Chicago Title and Trust Company was named trustee and was to hold title to certain land, including the first-floor store located at 4700 S. Indiana Avenue in Chicago, which was used as a tavern (hereafter tavern).

The trust agreement included the following pertinent provisions:

** *
(2) IT IS UNDERSTOOD AND AGREED by and between the parties hereto, and by any person or persons who may become entitled to any interest under this trust, that the interest of any beneficiary hereunder shaH consist solely of the power to direct the Trustee to deal with the title to said property, and the right to manage and control said property as hereinafter provided, and to receive the proceeds from rentals, mortgages, sales, or other disposition of said premises, and that such interest and rights in the avails of said property shall be deemed to be personal property, which interest and rights may be assigned or transferred as personalty. No owner of the shares or units of beneficial interest under this trust shall at any time have any right, title or interest in or to the said real estate as such, or any portion thereof, either legal or equitable, the owner’s interest being exclusively in the earnings, avails and proceeds as aforesaid. The death of any owner of beneficial interest hereunder shall not terminate the trust nor in any manner affect the powers of the Trustee hereunder, and in the event of the death of any such owner during the existence of this trust, his or her right and interest hereunder shall, except as herein otherwise specifically provided, pass to his or her executor or administrator as personalty, and not as realty to his or her heirs at law.
(3) The Trustee will deal with the aforesaid real estate only when authorized so to do in writing by the owner or owners of two-thirds (%) or more of the shares or units of beneficial interest hereunder, and the Trustee will, upon the written direction of the owner or owners of two-thirds (%), or more of the shares or units of beneficial interest hereunder, or such other person or persons as shall be from time to time named in writing by the said owner or owners, or on the written direction of such person or persons as may be the owner or owners of such shares or units at the time, make deeds for, or otherwise deal with the title to said real estate; provided, however, that the Trustee shall not be required to enter into any personal obligation or liability in dealing with said land or to make itself liable for any damages, costs, expenses or penalties, or that the Trustee shall not be required to deal with the title so long as any money is due it hereunder. Otherwise, the Trustee shall not be required to inquire into the propriety of any such direction. It shall not be the duty of the purchaser of the said real estate, or any part thereof to see to the apphcation of the purchase money paid therefor; nor shall any one who may deal with the Trustee be required or privileged to inquire into the necessity or expediency of any act of the Trustee or of the provisions of this instrument.
(4) The owner or owners of two-thirds (%) or more of the shares or units of beneficial interest hereunder shall have the right to manage this aforesaid property and to control the selling, renting and handling thereof, and shall collect and handle the rents, earnings, avails and proceeds thereof; and the Trustee shall have no duty in respect of such management and control, or the collection, handling or apphcation of such rents, earnings, avails or proceeds, or in respect of the payment of taxes or assessments or in respect of insurance, litigation or otherwise, except upon written direction, and after payment to it of all money necessary to carry out such instructions as herein provided. No owner or owners of the shares or units of beneficial interest hereunder shall have any authority to contract for or in the name of the Trustee or to bind the Trustee personally. # # #
(6) The real estate firm of DRAPER & KRAMER, INC., an Illinois corporation, is hereby designated agent for the owners of the beneficial interest under this trust, to manage and operate the trust property, to lease the same as such agent, to receive and collect the rents therefrom, and to disburse or distribute net rentals in accordance with whatever instructions it may receive from time to time from the owner or owners of two-thirds (%) or more of the shares or units of beneficial interest hereunder. In all matters relative to said agency, Draper & Kramer, Inc., is hereby authorized and directed to act upon the written instruction of the owner or owners of two-thirds (%) of the shares or units of beneficial interest hereunder, and said agency shall continue until revoked and terminated by a notice in writing signed by the owner or owners of two-thirds (%) or more of the shares or units of beneficial interest hereunder, and delivered to the principal office of Draper & Kramer, Inc., in the City of Chicago, Illinois. The Trustee shall have no duties, obligations or responsibilities in connection with the said agency, it being expressly understood that there shall be no agency relationship existing between the Trustee and Draper & Kramer, Inc., and that the said agent at all times shall be acting exclusively as the representative of the owners of the beneficial interest in this trust and that said agent shall have no right or authority to contract for or in the name of the Trustee or to do any acts or things for or in the name of the Trustee, excepting only that said agent may, if and when directed so to do by the owner or owners of two-thirds (%) or more of the shares or units of beneficial interest hereunder, pay general real estate taxes and special assessments levied or assessed against the trust property in the name of Chicago Title and Trust Company as Trustee under this agreement.”

On 10 August 1985, Draper and Kramer, purporting to act as agent for the trustee, in an apparent violation of the trust provisions, entered into a written lease of the tavern to one Louis Desideri for a period of 1 year, commencing 1 January 1966 and ending 31 December 1966. The lease provided that the tavern was to be used “as a confectionary [sic] store and tavern with the retail sale of tobaccos, fountain lunches and package liquor.” The lease also contained the following pertinent provision:

“Lessee hereby covenants that he will at all times, protect, defend, indemnify and hold harmless the said lessor and lessor’s Agent, and the Officers, Directors and Agents of each of them, from and against any and all loss, liability, suits, claims, costs, expenses or damages, resulting from or caused in whole or in part, by the selling, dispensing or giving away of alcoholic liquors in or upon or about said demised premises, by any person, firms or corporation whatsoever, whether such liability is based upon any statute of the State of Illinois, or upon the common law, or arising out of the violation of any statute, ordinance, regulation or duty imposed by any statute or the Common Law or otherwise.”

On 23 July 1966, one Amos Bain allegedly attacked one Henry Harden with a beer bottle while both men were in the tavern. Harden allegedly suffered a severe shock to the nervous system, in addition to severe physical injuries, both internal and external, including the loss of his left eye. On 24 May 1967, Harden and his wife, Areola (hereafter Hardens), filed an amended complaint against Desideri; the Chicago Title and Trust Company (hereafter trustee); Amos Bain; and William J. Bradford, Franklin B. Evans, Jr., Vivian Brown Spear, Charles I. Bradford, and Robert O. Evans (hereafter collectively referred to as the beneficiaries of the land trust). The Hardens alleged that Desideri, by and through Ins agents and employees in his behalf, sold or gave to Bain, while in the tavern, alcoholic liquors in such quantities as to then and there cause, in whole or in part, his intoxication; and that, while so intoxicated, he assaulted Henry Harden, causing his injuries. The Hardens claimed that, by virtue of the Illinois Dram Shop Act (Ill. Rev. Stat. 1967, ch. 43, sec. 135), a cause of action had accrued to each of them, and each sought damages under the Act from Desideri, the trustee, and the beneficiaries by virtue of their status as operator and owners of a dram shop respectively. (There was also a count in the complaint seeking damages from Amos Bain.)

On 29 October 1971, a court order was entered, pursuant to a settlement agreement, dismissing the principal action, but stating that “any cause of action which defendants may have against each other shall survive this dismissal of plaintiff’s [sic] complaint.”

Thereafter, on 23 November 1971, the beneficiaries filed an amended counterclaim in chancery against Desideri and Draper & Kramer. In Count one of the amended counterclaim in Chancery, the beneficiaries alleged that Draper & Kramer and Desideri, in their negotiations leading to the lease, had agreed that the beneficiaries would be the lessors; that the trustee was thereafter negligently designated as lessor by Draper & Kramer; that Draper & Kramer negligently executed the lease as agent for the trustee instead of as agent for the beneficiaries; that, according to the lease, Desideri had agreed to indemnify the lessor for certain losses (see indemnity provision supra); that Desideri did occupy the premises for the full term of the lease, paying the amount of rent set forth in the lease; that the Hardens did allege a cause of action against the beneficiaries and Desideri; that Desideri acknowledged in writing his obligation to the beneficiaries under the indemnification clause; and that, in settlement negotiations, Desideri had stated his assets to be a 5-year-old car and $480 in a checking account, but that he had recently conveyed real property to his wife by quit-claim deed. Having no adequate remedy at law, the beneficiaries asked that the lease be reformed to show that they were, in fact, the lessors and that Draper & Kramer be designated their agent. Then, the lease being so reformed, the beneficiaries asked that Desideri be ordered to comply with the indemnity provision of the lease and pay them all the sums that they had been required to pay to the Hardens as a result of this principal suit, plus expenses.

In Count II of the amended counterclaim in Chancery, the beneficiaries, apparently in an alternative to Count I, asked for indemnity from Desideri based on the theory of “active-passive” conduct. Specifically, they allege that their conduct in owning the tavern was merely passive in nature, whereas Desideri s conduct in serving Bain intoxicating liquors and thereby causing his intoxication, was active.

On 24 January 1972, Desideri petitioned the court to strike Count I, alleging various grounds for the impropriety of reformation in this case; and also to strike Count II, alleging that there had not been any factual determination as to his actions and that, in any case, the penal nature of the Dram Shop Act should preclude any liability on the basis of “active-passive” conduct.

The petition of Desideri was sustained by order of the trial judge and Counts I and II of the amended counterclaim in Chancery were stricken. The beneficiaries are appealing from that order.

As to Count I

The beneficiaries seek to reform the lease by having themselves designated as the lessors in place of the trustee, and by having Draper & Kramer designated as their agent (rather than as agent for the trustee). They seek reformation on the ground that the designation of the trustee as lessor was a mutual mistake of fact and that equity will cure such an error. Desideri, while acknowledging that a court of equity has such power, contends: that the mistake was not one of fact; that it was not mutual; and that the beneficiaries are strangers to the instrument and, as such, have no standing to seek reformation of it.

The basis for a reformation action is an understanding between the parties. What is sought to be reformed is not this understanding, but rather an instrument which inaccurately reflects it. There can be no reformation where there has not already been a meeting of the minds. In Harley v. Magnolia Petroleum Co. (1941), 378 Ill. 19, 28, 37 N.E.2d 760, our supreme court stated the basis of an action for reformation:

“Mistakes are generally divided into two groups, first, those fundamental in character, relating to an essential element of the contract which prevent a meeting of the minds of the parties and so no agreement is made. These generally have to do with such matters as the existence and identity of the subject matter, errors as to price, quantity, and the like. In the other class of mistakes an actual good-faith understanding is reached but through some error, not expressed, the agreement reduced to writing is not the actual agreement. The former of these classes constitutes ground for rescission but not reformation, while the latter may be reformed. An action to reform a written agreement rests upon a theory that the parties came to an understanding, but in reducing it to writing, through mutual mistake, or through mistake of one side and fraud on the other, some provision agreed upon was omitted, and the action is to so change the instrument as written as to conform it to the contract agreed upon, by inserting the provisions omitted or striking out the one inserted by mutual mistake. Equity cannot make a new agreement for the parties under the color of reforming the one made by them, or add a provision which they never agreed upon. Where a writing expresses an actual agreement it cannot be reformed by inserting provisions not agreed upon.”

The alleged mistake which the beneficiaries seek to reform is not the fact that Draper & Kramer negligently designated the trustee as lessor and itself as the trustee’s agent, but rather, the resulting fact that the lease itself, as executed by both parties, failed to reflect their actual agreement. In other words, both parties mistakenly thought that the document which they executed properly reflected their prior agreement, namely: that the lease was to be between Desideri and the beneficiaries with Draper & Kramer acting as the agent for the beneficiaries. This allegation is substantiated by the fact that, on 13 November 1967, after the lease had expired and the principal lawsuit had been instituted, Desideri, through his attorneys, acknowledged his duty to the beneficiaries under the indemnity provision of the lease. Examining the alleged mistake in this light, it was obviously mutual.

Desideri, however, contends that the mistake cannot be characterized as mutual since it was caused by the negligence of Draper & Kramer. We do not agree. The alleged mistake was made by both parties when they signed the lease believing it to embody their prior agreement. In addition, the negligence of a party is not a bar to reformation, since one’s mistake commonly arises from one’s own negligence. To hold that negligence is a bar to a party’s right to seek reformation would preclude the remedy in most cases. In Blumenfeld v. Neuman (1953), 350 Ill.App. 306, 312, 112 N.E.2d 742, the court stated:

“The general rule is: ‘Negligence to bar the reformation of a deed in case of mutual mistake must be so great as to amount to a violation of a positive legal duty.’ Pearce v. Osterman, 343 Ill. 175. And the following principle appears in decisions from many jurisdictions: It is obvious that negligence itself is not a defense to reformation, since there would then be no ground for reformation because of mutual mistake, inasmuch as mistakes nearly always presuppose negligence. Columbian National Life Ins. Co. v. Black, 34 F. (2d) 571; Anderson v. Pettigrew Foundry Co., 297 Ill.App. 14, citing cases. And see 105 A.L.R. 847n.”

Nowhere in the beneficiaries’ amended petition is there any admission of anything other than simple negligence.

Given the mutuality of the alleged mistake or mistakes, we must next determine whether they were mutual mistakes of fact or mistakes of law. If Draper & Kramer’s negligent designation of the trustee as lessor and of itself as the trustee’s agent was merely overlooked by the parties in executing the lease, then their mistake was clerical and, therefore, one of fact. Again, if Draper & Kramer’s negligent designations and the parties’ subsequent mistaken execution of the lease were based on the belief that the trustee could be designated as lessor and still accomplish the underlying agreement to have a lease between the beneficiaries and Desideri, this mistake was not one of law since the law authorizes either the beneficiary or the trustee of a land bust to act in the capacity of lessor when the provisions of the governing trust agreement so authorize, as they do in the instant case. (See Guaranty Bank & Trust Co. v. Reyna (1964), 51 Ill.App.2d 412, 201 N.E.2d 144; Klein v. Ickovitz (1970), 121 Ill.App.2d 191, 257 N.E.2d 187.) And even had the parties designated the trustee as lessor under the misapprehension that the beneficiaries could not legally act in that capacity, such a “mistake of law” is not always a bar to reformation, where the instrument does not reflect the true intent of the parties. See Barkhausen v. Continental Illinois National Bank & Trust Co. (1954), 3 Ill.2d 254, 120 N.E.2d 649; Peter v. Peter (1931), 343 Ill. 493, 175 N.E. 846; Dinwiddle v. Self (1893), 145 Ill. 290, 33 N.E. 892.

The other possible mistake which Desideri points out was that Draper & Kramer was under the misapprehension that it was authorized to execute an instrument as agent for the trustee. Desideri contends that this proscription was a matter of law. We disagree. As a matter of law, it would not have been illegal for Draper & Kramer to act as agent for the trustee (see Guaranty Bank & Trust Co., supra). Rather, Draper & Kramer’s inability to act as agent for the trustee was imposed by the particular fact situation presented by this particular trust agreement. Draper & Kramer’s alleged negligence was the result of a misunderstanding or ignorance of the facts of that agreement, and not of the law governing it.

Given an alleged mutual mistake of fact, Desideri insists that reformation is not available in this case since the beneficiaries were not parties to the lease as executed, and since a stranger to a contract has no standing to seek reformation. The concept of reformation is based on an existing, underlying agreement between the parties which is not properly reflected when reduced to written form. In the present case, the beneficiaries allege that Desideri and their agent had entered into a lease agreement which was not properly reflected in the executed lease. It can hardly be said that a party to the basic underlying contract is not a party to the written version of that understanding merely because his name is omitted from that document by mistake. To allow such a result would be to destroy the original understanding and the rights of the parties to that understanding. Equity will not allow such a result. Our courts have held that a deed of trust may be reformed to substitute the proper grantor where another was mistakenly inserted (West v. Madison County Agricultural Board (1876), 82 Ill. 205); and a deed may be reformed to substitute the name of the intended grantee for one named by mistake (Bohanan v. Bohanan (1879), 3 Ill.App. 502). (See also Fisher v. Barnett (1895), 56 Ill.App. 649.) We can find no reason why a lease cannot be reformed to substitute the name of the intended lessor for the name of the lessor mistakenly inserted, if the mistake was mutual and one of fact.

In support of his petition to strike Count I of the amended counterclaim, Desideri raised a number of other issues which were not supported by any authority and which he chose not to pursue on appeal. While these could be deemed as waived (Quinn v. Larson (1966), 77 Ill.App.2d 240, 222 N.E.2d 239), we will consider them briefly.

Desideri contended that the court below had no jurisdiction in that the subject matter of Count I was not related to the principal law action. Section 38(1) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, § 38(1)) provides:

“Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of setoff, recoupment, cross-bill in equity, cross demand or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross demand in any action, and when so pleaded shall be called a counterclaim.”

Clearly the statute is broad enough to authorize one codefendant to institute an equitable counterclaim against another codefendant. The counterclaim need not be of the same character as the original demand, but may be legal, equitable or both, nor need the counterclaim arise out of the same transaction as the plaintiffs demand; and, in fact, a counterclaim may be filed without regard to the effect it may have upon the plaintiffs demand. (People ex rel. Bradford Supply Co. v. Circuit Court of Pulaski County (1946), 393 Ill. 520, 66 N.E.2d 420.) It has been specifically held by our courts that one codefendant may seek indemnity from another codefendant by way of a counterclaim. Embree v. DeKalb Forge Co. (1964), 49 Ill.App.2d 85, 199 N.E.2d 250.

In the instant case the beneficiaries were merely seeking indemnity from their codefendants on the basis of a lease provision, and, in order to do so, they had to jump the equitable hurdle of reformation. This being the case, we hold that the court below had proper jurisdiction over the subject matter of Count I.

Next Desideri claimed that the beneficiaries were guilty of laches in not seeking reformation at an earlier date, because, as a result, he had substantially changed his position in reliance thereon, in defending and settling in the initial lawsuit. It is an inherent element of laches, not only that a considerable period of time elapse and that the one charging laches has been prejudiced thereby, but that the party sought to be charged therefor have knowledge of facts. (Anderson v. Pettigrew Foundry Co. (1938), 297 Ill.App. 14, 17 N.E.2d 60.) Laches is an affirmative defense and, as such, its elements must be pleaded by the party claiming it and they must be supported by facts. There is no allegation in the petition, nor does the record hint, as to when the beneficiaries learned of the mistake. In fact, the only time-indicator available is the letter from Desideri’s attorneys, dated 13 November 1967, after the expiration of the lease and the institution of the suit by the Hardens, acknowledging his Lability to the beneficiaries under the indemnity provision in the lease. At that late date, even Desideri himself thought that the lease as executed reflected the alleged basic agreement between the parties.

Nor is the record any clearer as to any prejudice suffered by Desideri because of the delay in seeking reformation. It is difficult to understand Desideri’s allegation that he relied on the beneficiaries’ inaction in setting the principal lawsuit, since it appears, from the beneficiaries’ amended counterclaim and its supporting documents, that Desideri did not participate in the settlement. Considering the allegations in the petition to strike, together with the record presented to us, we conclude that the defense of laches would not be appropriate in this case.

Finally, Desideri alleged:

“That the Counter-Plaintiffs are estopped from filing an action to reform an instrument because they have ratified said instrument as shown by their filing of an initial Counterclaim against Louis Desideri based upon the same instrument they are now seeking to reform. Said Counterclaim was dismissed by this Court after a full hearing on November 12, 1971.”

Since the initial counterclaim was not made a part of the record in this appeal and the order by the trial court on 12 November 1972 was silent as to the reasons for the dismissal, we are unable to consider this point on appeal.

We conclude that the beneficiaries sufficiently stated a cause of action for reformation in Count I of then- amended complaint, and that the trial court erred in sustaining Desideri’s petition to strike.

As to Count 11

In Count II of the amended counterclaim, the beneficiaries seek indemnity on the basis of a “qualitative distinction” between their conduct and that of Desideri’s. They contend that Desideri’s conduct was “active” in serving liquor to Amos Bain, whereas their conduct in owning the building in which the liquor was served was merely “passive”. This, of course, is the theory of implied indemnity based on “active-passive negligence.”

Even if the beneficiaries were to be allowed to seek indemnity on this theory (as to which, see the next paragraph), we do not consider their conduct “passive” within the meaning of that theory of implied indemnity. There is no common law liability for either owning the premises in which a dramshop is housed or for operating a dramshop and serving intoxicating liquors therein. Graham v. General U.S. Grant Post No. 2665, V.F.W. (1969), 43 Ill.2d. 1, 248 N.E.2d 657. The respective liabilities imposed on the owner of the premises and the operator of the dramshop are therefore based strictly upon statute. (Ill. Rev. Stat. 1967, ch. 43, sec. 135.) Under the statute, both the owner of the premises and the seller of intoxicating liquors thereon are jointly and severally liable, and the statute makes no qualitative distinction between the actions of owning and serving. If one’s conduct falls within the provisions of the statute, he must be considered an active wrongdoer under that statute, regardless of the comparative passive nature of that conduct relative to the conduct of another statutory obligor. In the present case, both Desideri’s selling of intoxicating liquors and beneficiaries’ owning and leasing the premises in which the liquor was sold fall within the provisions of the statute, making them both statutory tortfeasors and, as such, both active wrongdoers.

In addition, our Supreme Court has recently expressed reluctance to apply this “active-passive” theory of implied indemnity in Dram Shop cases. Theretofore, the theory had been applied by the appellate courts in the First and Fourth Districts of our State to allow a dramshop operator to seek indemnity from the intoxicated person for damages paid by such operator resulting from the willful, deliberate, and malicious acts of the intoxicated person. (Walker v. Service Liquor Store, Inc. (1970), 120 Ill.App.2d 112, 255 N.E.2d 613; Geocaris v. Bangs (1968), 91 Ill.App.2d 81, 234 N.E.2d 17.) This application, however, was subsequently overruled by our supreme court in Wessel v. Carmi Elks Home, Inc. (1973), 54 Ill.2d 127, 295 N.E.2d 718. The court stated that a dramshop action is sui generis and distinct from a cause of action based on negligence, and that those negligence decisions which have broadened the concept of implied indemnity are distinguishable. While the supreme court did not rule precisely on the question of whether the owner of a dramshop premises could seek implied indemnity from the dramshop operator, it did express its hesitancy to allow implied indemnity in this area based on “active-passive negligence.”

The trial court was correct in its dismissal of this count of the amended counterclaim.

Reversed and remanded as to Count I; affirmed as to Count II.

STAMOS and LEIGHTON, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    Robert L. Mueller, Adm’r of the Estate of Willard H. Maberry, Deceased, et al., Plaintiffs-Appellees, v. Sangamo Construction Co., Defendant-Appellant.
    (No. 12003;
    Fourth District
    July 17, 1974.

      Rehearing denied August 19, 1974.

      W. J. Simhauser, of Springfield, for appellant.
    Robert L. Mueller and James T. Londrigan, both of Springfield, for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The circuit court of Sangamon County entered judgment for the plaintiff administrator in a wrongful death action and for the widow of the decedent for funeral expenses. The defendant appeals from such judgments and contends that there was insufficient evidence to go to the jury on the issue of due care on the part of plaintiffs decedent. We reverse.

The incident resulting in Willard H. Maberry’s death occurred on March 18, 1969, as he was driving a tractor trailer north on Interchange 55 at a detour point south of the Lake Springfield bridge. On that date, the defendant was constructing a new bridge under contract with the State of Illinois. The decedent was proceeding north in the right northbound lane when he came to a detour. The detour rerouted the two northbound traffic lanes from the old bridge to the new. The old center line dividing the two northbound lanes curved to the left, forming a V with the new center line on the detour leading the two northbound lanes straight ahead and across the new bridge. The decedent had turned into the left-hand lane before reaching this point. He missed the correct detour to the right and drove left into what had previously been the old roadbed, but which at the time of the accident was a median strip between northbound and southbound lanes. There was a pile of broken concrete in this median at a distance of about 233 feet from the point where the truck of the decedent left the road and 15 to 28 feet from the new pavement. The tractor trailer collided with this pile of concrete and the decedent was killed when sheets of steel which he was hauling moved forward on the trailer and through the cab.

The only eyewitness to the accident was a trucker who was following the decedent’s truck in his personal car on the night in question. When he first saw the truck he was 400 to 600 feet behind it and slowed down to between 40 and 50 mph, and this was the approximate speed of the truck. The light of the truck just disappeared and some rocks fell on top of his car as he moved on. He turned back to the wreck. The cab of the truck was resting on top of the concrete pile. The area was quite dark and the rubbish pile was some 4 to 5 feet in height and about 15 to 28 feet from the new pavement. Warning signs saying, "road construction ahead,” "curve,” and "detour ahead,” were in place at the time of the accident. This witness did not see the truck slow down as it rounded the curve, nor did he see the brake lights of the truck come on and if they had come on, he was in a position where he would have seen them. He never saw any turn signal. When the truck started going around the curve it started to turn into the left-hand lane. There were southbound vehicles in the southbound lane to his left. The roadway was marked with hazard marker barrels and with hazard markers which would reflect the lights of an oncoming vehicle.

The decedent had been over this route previously twice before. Police officers testified that the marker barrels were in place earlier in the evening. Another witness testified that he had, on previous occasions, noted that the marker barrels on the left of the road had been hit by vehicles and the evidence indicates that this did happen occasionally. There were one or two wrecked barrels and hazard markers under the truck. There were no skid marks at all before or after the truck left the pavement. Since there was an eyewitness, there was no testimony as to the decedent’s driving habits. The widow did testify that when her husband left earlier in the evening, he appeared to be alert and well rested and that he had a physical examination in February when he was discharged from the military service and again in March before he started the trucking job.

The evidence clearly shows that the “road construction sign” was about 2,000 feet, the “curve” sign about 1,500 feet and the “detour ahead” sign about 1000 feet south of the accident scene. A witness for the defendant testified that it was the responsibility of the State to designate where the marker signs and barrels were to go and it was the defendant’s responsibility to place them there. At 4 on the afternoon of the accident, everything was in place. The accident took place around 11:30 in the evening.

From the facts above recited, it seems abundantly clear that the occurrence and preoccurrence events are not in dispute. Under such circumstances, verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) Questions of negligence and contributory negligence are ordinarily matters for the jury. (Johnson v. Skau, 33 Ill.App.2d 280, 179 N.E.2d 40.) Where there exists, however, a difference of opinion as to the inferences which may legitimately be drawn from undisputed facts, the questions of negligence and contributory negligence are primarily for the jury. (Cloudman v. Beffa, 7 Ill.App.2d 276, 129 N.E.2d 286.) Where the plaintiff’s due care cannot be established by direct testimony, it may be inferred by the jury from all of the facts and circumstances shown to exist prior to and at the time of the collision. The burden rests with the plaintiff to show such facts and circumstances which are free from the taint of speculation and conjecture. (Compton v. Frank, 126 Ill.App.2d 356, 261 N.E.2d 727.) In the case at bar, the sole question is, therefore, whether or not the plaintiff has sustained that burden.

The testimony is undisputed that the marker barrels were frequently struck at this location; that there was little or no effective lighting at the scene; that fights of vehicles coming from the south furnished a hazard; and that speaking generally, the detour was hazardous. As against this set of circumstances, the record is completely silent as to anything done affirmatively by the decedent to avoid this occurrence. More than 2,000 feet back he was made aware of construction. More than 1,500 feet back was a sign indicating a curve. More than 1,000 feet back was a sign stating, “detour ahead.” The eyewitness testified that the decedent apparently did not slow down, although he might have slowed down as much as 5 miles per hour without him noticing it. The record shows that the rock pile was 230 feet over a gravel surface from the place where the decedent went off the road and that the truck required 275 to 300 feet to stop on a dry level pavement. The decedent was making his third trip within a week hauling steel from Granite City to Chicago. It is apparent that the road conditions here have existed in this fashion for at least that length of time, if not longer. There was, likewise, testimony that had the decedent applied his brake suddenly and locked the wheels, the steel load might shift and move forward over the driver. In fact, that is exactly what did happen when he struck the concrete. There is nothing in this record that remotely suggests that the decedent did anything to avoid the accident even after he knew or must have known that he had hit one of the barrels. Why he did not note the turn to the right rather than to the left when he had been over this road twice before within a week or 10 days, why he did not slow down to a point where his truck was under his absolute control with full knowledge of a construction area and with previous knowledge of the detour and previous road conditions, is not shown. Every witness who testified for either side considered this a hazardous area. The decedent, too, had been over it twice before and what was apparent to others should have been readily apparent to him.

Under these circumstances, we cannot say that the defendant was confronted with a sudden and an unknown peril which would delimit his requirement to exercise due care and caution for his own safety, nor do we believe that it can be fairly said from the evidence in this case that the defendant induced his action because the old center line turned to the left or because some 1,500 feet or more back there apparently was a sign indicating a left turn. He knew better than that. He had been over this road before. As this court observed in Dominick v. Behrends, 130 Ill.App.2d 726, 264 N.E.2d 297, the credible evidence in this record negates any reasonable inference that he was in the exercise of due care and caution for his own safety. There are simply no facts from which a jury might reasonably presume or reasonably infer that the decedent was in the exercise of due care and caution for his own safety. It is pure speculation and guess on the part of the jury to say that the center line turning to the left or the curve sign some 1500 feet back lead this defendant into a trap. Having been over this road twice before, he was fully aware that neither of them were correct and accurate. He negotiated this same route twice before with safety. We are constrained to hold that the plaintiffs failed to carry the burden of proof and that the trial court should have directed verdicts for tire defendant.

The judgments are accordingly reversed.

Reversed.

TRAPP and SIMKINS, JJ., concur.


author: Mr. JUSTICE STAMOS

text:
    John Szczesny, Plaintiff-Appellant, v. W.G.N. Continental Broadcasting Corporation et al., Defendants-Appellees.
    (No. 59505;
    First District (2nd Division)
    June 25, 1974.

      Robert Steinbock-Sinclair, of Chicago, for appellant.
    John B. Moser, of Chicago, for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff, John Szczesny, appeals from a summary judgment entered in favor of defendants, Jewel Companies, Inc. (hereinafter Jewel) and W.G.N. Continental Broadcasting Corp. (hereinafter W.G.N.), in an action to recover damages for the infringement of a common law copyright in a certain retail-store promotional television program.

In his complaint plaintiff alleged that during the year 1959 he originated and caused to be prepared an original script for a television program entitled “At the Races” for the purpose of submission to prospective broadcasting companies; that plaintiff at all times retained full ownership of said program and has never authorized the use of the program at any time; that in 1959 W.G.N. was informed of the nature and contents of plaintiffs program; that in 1967 W.G.N. produced and presented a program entitled “Let’s Go to the Races,” substantially copying plaintiff’s program, but without plaintiff’s consent or authorization; that in 1967 Jewel entered into an agreement with W.G.N. to purchase “air time” to broadcast the program entitled “Let’s Go to the Races”; and that Jewel knew or should have known through the exercise of ordinary care that the program was substantially copied by W.G.N. from plaintiff’s program and without his consent. Plaintiff alleged unauthorized use by W.G.N. of his literary property right and misappropriation by W.G.N. and Jewel of the profits and benefits of his property right.

Defendants’ answer denied plaintiff’s allegation and alleged, by way of affirmative defense, that during the year 1959, plaintiff submitted to W.G.N. written suggestions for a television program entitled “At the Races,” and that upon receiving plaintiff’s suggestion W.G.N. sought and secured from plaintiff a formal written release regarding the use of his suggestions. Defendants further alleged that plaintiff’s suggestions were not novel or original, were sketchy and incomplete and were not in a form which could be used for any broadcast purposes. Defendants also asserted that the program entitled “Let’s Go to the Races,” sponsored by Jewel and broadcast by W.G.N., was independently developed by persons other than plaintiff and was in no way based upon or appropriated from plaintiffs suggestions.

The record reveals that in a two-page letter dated February 18, 1959, plaintiff submitted to W.G.N. his “idea on a quiz game which I have named ‘At the Races’ for Television or Radio programs.” The first page set forth the steps involved in a program by which a code key of horses’ names would appear in daily newspapers and contestants would be telephoned and asked to read the names of the winning horses and jockeys. The correct answer would allow the contestant to compete for the Daily Double or “Jackpot prize.” The price money “can be the actual mutuels or a pre-set amount for win, place or show.” The second page of the letter set forth variations on this game by suggesting that it can be played as “Bingo” by the use of “special dice.” The final suggestion was:

“Another method which would be easily adaptable to T.V. would be the actual filming of the races as they are run at any race track. In this method people at home can be included in a nationwide game, numbered cards can be used the same as described above. The number of races can be prearranged on each card, with the cards having different combinations of numbers, for each race. There can be one winner for each race, or it can be done as it is at the race track, WIN-PLACE OR SHOW. The awards being lesser for place and show, the money won could be the actual mutuel or any prearranged amount.”

In a letter to plaintiff dated February 23, 1959, Bruce Dennis, program manager of W.G.N., acknowledged receipt of plaintiff’s “At the Races program idea and release form,” and stated that W.G.N. was unable to consider additions to its schedule.

In June, 1966, Jewel purchased the rights to the use of the program “Let’s Go to the Races” from one Walter Schwimmer and his associates. In 1967 that program was broadcast by W.G.N. Prior to its broadcast in Chicago by W.G.N., the program had been sold to other sponsors and had been broadcast by television stations throughout the country between 1962 and 1965. In 1963 Walter Schwimmer, Inc., obtained a statutory copyright on the program. “Let’s Go to the Races” was a weekly broadcast of five pre-filmed horse races. Jewel made available to the public cards listing a number for each of the five races. If the number for one of the races corresponded to the number of the winning horse in that race, the holder of the card won a pre-arranged amount of money.

In support of their motion for summary judgment, defendants filed an affidavit of Walter Schwimmer stating that for the past 35 years he has been actively engaged in the creation, development, production, promotion and sale of various radio and television programs. Since 1948 affiant created, produced and sold some 20 different programs to television stations throughout the United States, including “Movie Quick Quiz,” “Championship Bridge,” “Championship Bowling,” “All-Star Golf,” and “World Series of Golf.”

In 1955 Schwimmer began formulating an idea for the development of a horse racing program for television in which a series of races would first be filmed and then used in a television program in which home viewers would attempt to select winners from each race and would be awarded prize money for the correct choice. Between May and August,

1958, Schwimmer and Sid Goltz of the Peter De Met Company began negotiations with Arlington Park Race Track regarding the filming of horse races for the proposed program. On May 5, 1958, in a letter to Peter De Met, Schwimmer referred to his program idea as including the use and distribution of racing forms and entry blanks which would be used by viewers in making their selections. In a letter dated July, 1958, to a member of the Arlington Park Jockey Club, Schwimmer referred to his proposed program as “Lets Go to the Races.” In 1958 a pilot program of the horse races was filmed by Schwimmer. Defendants’ Exhibit H attached to Schwimmer’s affidavit is an undated document setting forth the program format in detail and explaining how the viewing audience would participate. Schwimmer averred that this document was prepared by him in 1958. Another Exhibit, I, is an undated letter to television station directors across the country. This letter briefly outlined Schwimmer’s idea, but stated that no prizes were involved. Schwimmer averred that this letter was prepared on March 13, 1959. The record also contains numerous negative responses, dated in 1959, from television station directors to Schwimmer, acknowledging receipt of a March 13, 1959, letter.

In 1962 Schwimmer filmed 26 Vz hour shows and began promoting “Let’s Go to the Races.” Shortly thereafter the program was purchased by sponsors in various parts of the country and was broadcast by 6 to 12 television stations. On June 21, 1966, Schwimmer and Jewel entered into a contract whereby Jewel purchased rights to the use of the program. Jewel thereafter entered into a contract with W.G.N. for broadcast of the program. On January 14, 1967, “Let’s Go to the Races” premiered on W.G.N. Walter Schwimmer averred that prior to the filing of this cause he had not known of plaintiff and was never aware that plaintiff had communicated to W.G.N. his ideas regarding a television program on horse racing; and that the “Let’s Go to the Races” program was “conceived and created solely by me, was refined in several minor respects by one of my employees, Mr. Arthur Pickens, and was developed, produced and sold solely by Walter Schwimmer, Inc.”

In a deposition taken July 15, 1971, Schwimmer stated:

“To my knowledge I originated [the idea] close to [the context in which W.G.N. produced the program]. We always refined it. The idea was to have some horse races, and ** ” have a merchandising idea whereby a person had to pick up a ticket or program or something in connection with the horse races, but in a broad way, the original idea was very much like the executed idea.”

Schwimmer further stated that the idea in its inception was his and that only Arthur Pickens worked on it with him. He stated: “If Pickens had worked on it, he may have worked on maybe developing one ticket as against another ticket or developing a better way to shoot the races ***. ”

The record also includes the affidavit of Arthur E. Pickens who averred that from 1958 to 1968 he was employed by Walter Schwimmer, Inc., as vice-president in charge of programs. Pickens confirmed the accuracy of Schwimmer’s affidavit as to the circumstances under which “Let’s Go to the Races” was created, developed, produced and sold. In addition Pickens stated that in 1958 he was personally involved in developing special filming techniques for use in the pilot film of the program; that at least 2 to 4 years before the program was sold to Jewel, it was broadcast in Minneapolis, Minnesota, and locations in the southern United States. Pickens, too, averred that prior to the filing of this cause in 1970 he had never known of plaintiff, had never seen any correspondence regarding plaintiff and was unaware of plaintiff’s alleged idea.

In his motion in apposition to defendants’ motion for summary judgment, plaintiff attacked defendants’ motion and affidavits in support thereof as merely conclusions concerning the creation and development of the program “Let’s Go to the Races,” and attacked the credibility of defendants’ affiants. Attached to plaintiff’s motion were an affidavit of plaintiff’s counsel and the affidavit of plaintiff which again traced the origin and submission of his idea to W.G.N. Plaintiff stated that in January and Februaiy, 1967, he contacted W.G.N.; that not until March 21, 1967, did W.G.N. raise for the first time the issue of independent development; that in 1967 he unsuccessfully attempted to speak with Schwimmer and that he did speak with Pickens who told plaintiff to “sue them”; that in 1969 W.G.N. revealed that they were unable to locate plaintiff’s original script and the alleged release; and that plaintiff was orally advised by counsel for W.G.N. that Schwimmer’s idea dated back to 1963, not prior to 1959.

On May 3, 1973, the court entered an order reciting that on the record no genuine issue of material fact existed, and granted defendants’ motion for summary judgment.

Plaintiff filed a motion for rehearing on the grounds that defendant’s description of Schwimmer’s proposal and Schwimmer’s own description of his idea were not similar to the program that was ultimately presented to the public, and that therefore the defense of independent development is inappropriate. Plaintiff alleged that a comparison of plaintiff’s proposed idea and of Schwimmer’s proposal with the actual program broadcast constituted a material issue of fact. On June 14, 1973, the trial court denied plaintiff s motion.

On appeal plaintiffs contention is that the trial court erred in entering summary judgment in defendants’ favor because the court erroneously was led to believe that the defense of independent development was applicable. Plaintiff argues that, in fact, plaintiffs proposal and Schwimmer’s proposal, allegedly formulated prior to plaintiffs submission to W.G.N., are dissimilar. Thus independent development is not a defense in this case, and the similarity between plaintiffs proposal and the program broadcast by W.G.N. raises the inference of copying.

In the field of common-law copyright, an idea is entitled to protection as a property right where the idea is novel or original, where it has been reduced to expression in a concrete form, and where the creator of the idea has not published it or consented to its publication. (John W. Shaw Advertising, Inc. v. Ford Motor Co., 112 F. Supp. 121 (N.D.Ill.).) Where such a protectible property right is appropriated, a cause of action for common law copyright infringement based upon a tort theory or a quasi-contract theory arises. In order to recover plaintiff must prove copying by defendant. An inference of copying arises upon a showing of substantial similarity between plaintiff’s work and defendant’s work and access to plaintiffs work by defendant. The question of similarity between the two works and the question of copying are generally questions of fact. (Roberts V. Dahl, 6 Ill.App.3d 395, 286 N.E. 2d 51; Belt v. Hamilton National Bank, 108 F. Supp. 689 (D.D.C.), aff’d, Hamilton National Bank v. Belt, 210 F.2d 706 (D.C. Cir.).) However, whether there is any question to present to the trier of fact is, initially, a question of law. Roberts v. Dahl, supra.

The record establishes that plaintiff did have a common law copyright in his program ideas, and defendants, in their motion for summary judgment, did not dispute this. Defendants stated that no genuine issue as to any material fact existed for the reasons that defendants established that the program “Let’s Go to the Races” was independently developed by persons who had no access to plaintiffs ideas, and that plaintiffs program was not substantially similar to the actual program broadcast.

The sole function of a court in reviewing the trial court’s entry of summary judgment is to determine whether the trial court correctly ruled that no genuine issue of material fact has been raised for trial. In the instant case, plaintiff presented sufficient evidence of similarity between his idea and the “Let’s Go to the Races” program and of access by W.G.N. to his idea to raise an inference of copying. However, it is well established that where defendant asserts the defense of independent development, the inference of copying is dispelled, and the court may enter summary judgment in favor of defendant. Roberts v. Dahl, supra.

To determine whether the defense of independent development is applicable, we initially must determine whether the evidence presented by the alleged independent developer demonstrates that he did develop the program actually broadcast. (Stanley v. Columbia Broadcasting System, Inc., 35 Cal.2d 653, 221 P.2d 73.) Therefore, we must compare Schwimmer’s format to the televised version of the “Let’s Go to the Races” program. The standard to be applied to determine similarity is the common knowledge of the average reader, observer, spectator or listener. Teich v. General Mills, Inc., 170 Cal. App.2d 791, 339 P.2d 627.

The record reveals that in 1955 Walter Schwimmer conceived an idea for a television program utilizing filmed horse races. In the spring and summer of 1958 Schwimmer commenced work on filming techniques, and referred to his program idea as including the use and distribution of racing forms and entry blanks whereby the viewing audience would attempt to select the winners. Defendants’ Exhibit A, a letter from Schwimmer to Peter De Met, dated May 5, 1958, specifically mentions this method of audience participation. Also in 1958 Schwimmer referred to his program as “Let’s Go to the Races,” and filmed a pilot show. This is clear from letters written by Schwimmer in 1958. Plaintiff concedes that all these events occurred prior to plaintiff’s submission of his idea to W.G.N. Defendants’ Exhibit I, a March, 1959 letter from Schwimmer to television station directors around the country, stated that the proposed program was a horse racing program tied in with a merchandising idea:

“[E]ach race would have its own racing program listing the horses, jockeys, post position * * ®. Each week the viewer would be able to obtain these racing programs at tihe sponsor’s outlets. ® * ®
However, * * ® there are no prizes involved, no gambling of any kind, or any mention of any betting.”

Thus the record is unclear as to the method of audience participation developed by Schwimmer. In Ms affidavit Schwimmer averred that he and his associate refined the program format from 1958 until 1962 when the show was imtially sold to a sponsor. The record is barren of any other facts wMch indicate how and when Schwimmer refined Ms format. In his affidavit Pickens confirmed the accuracy of Schwimmer’s affidavit, but specifically, he merely averred that in 1958 he was personally involved in developing special filming techniques for use in the pilot film. We are of the opinion that the method of audience participation in “Let’s Go to the Races” is a salient feature of the idea entitled to protection, for the method of audience participation would directly affect the saleability of the program to a sponsor, and would also be an important factor in determimng how conducive to television broadcasting such a program would be. Defendants’ evidence of independent development lacks proof of Schwimmer’s refinement of the audience participation aspect of the game. We are left only with Schwimmer’s conclusionary statement that the format described in Ms affidavit and deposition was “refined” by him and was the program copyrighted by Mm in 1963 and broadcast by W.G.N. in 1967. Similarly, W.G.N. states that it in no way was involved in the development of the program broadcast in 1967.

From the state of the record, we cannot conclude that defendants presented conclusive evidence of independent development of the game show. Under these circumstances defendants’ defense of independent development is an issue of fact to be determined upon a trial. Roberts v. Dahl, supra, relied upon by defendants, is not controlling here because in Roberts the inference of copying was dispelled by defendants’ clear and uncontradicted evidence of independent development. Accordingly, we hold that summary judgment was improvidentiy granted, and we reverse and remand with directions that the trial court set the cause for trial.

Reversed and remanded with directions.

HAYES, P. J., and DOWNING, J., concur.

       Subsequent to the filing of defendants’ answer, Dennis filed an affidavit asserting that he diligently searched the files of W.G.N. in February, 1967, and October, 1970, for the purpose of locating the release allegedly given W.G.N. by plaintiff, but that due to changes of personnel and transfer of W.G.N, facilities in 1961, the release was lost. Defendants did not rely upon the issue of release in their motion for summary judgment, and that is not at issue on appeal.


author: Mr. JUSTICE SEIDENFELD

text:
    Kenilworth Insurance Company, Plaintiff-Appellee, v. Willie E. McDougal et al., Defendants-Appellants.
    (No. 72-293;
    Second District
    July 8, 1974.

      Melvyn L. Medansky, of Medansky, Cohan, Medansky & Valentine, of Chicago, for appellants.
    Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Kenilworth Insurance Company (Kenilworth), a corporation, filed a declaratory judgment suit against the defendants, seeking a declaration that there was no insurance coverage under the uninsured motorist provision of its policies which insured the driver and the owner of the car involved in an accident. (The policies are identical and will be referred to as the policy.) By its verdict the jury found that there was no physical contact between the insureds’ vehicle and that of an unidentified motorist. Thereupon the court entered judgment which adjudicated that no coverage existed under the terms of the policy.

Defendants appeal from the declaratory judgment, contending that Du Page County was improper venue for the action, that Kenilworth is estopped from asserting noncoverage, that the verdict of the jury is against the manifest weight of the evidence, and that certain evidentiary errors require a new trial.

The accident occurred in Du Page County when the car which the defendant Willie E. McDougal was driving and in which the remaining defendants were passengers, crossed the median on Interstate 55 into the wrong lane of travel causing a multiple collision. The defendants filed a timely limited appearance challenging venue in Du Page County and moving for a change of venue to Cook County. In support of their motion they alleged their residence in Cook County, the execution of the insurance policy in Cook County, and the policy requirement that arbitration take place in Cook County. Defendants contend on appeal that dealings with third parties are not to be considered in fixing venue and that the court erroneously denied their motion on the mistaken basis that the accident itself was a part of the “transaction” for determining venue.

Section 5 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 5) provides as material here:

“Venue — Generally. Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him and not solely for the purpose of fixing venue in that county, or (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” (Emphasis added.)

“Transaction” has been defined to include every fact which is an integral part of a cause of action. (People ex rel. Carpentier v. Lange (1956), 8 Ill.2d 437, 441; Beatrice Foods Co. v. Gallagher (1964), 47 Ill.App.2d 9, 15; Christopher v. West (1952), 345 Ill.App. 515, 528.) The facts of the accident, particularly with reference to whether or not there was physical contact between the insureds’ vehicle and the vehicle of the uninsured motorist, clearly appear to be an integral part of plaintiffs cause of action to establish noncoverage under the policy. We agree with plaintiff’s view that the real question to be decided in the declaratory judgment action does not lie in the interpretation of the insurance contract but in the resolution of the facts of the automobile accident. An action for declaratory judgment is neither legal nor equitable and the forum depends on the issues involved and the relief sought. (Vermilion County Good Government League, Inc. v. Smith (1965), 64 Ill.App.2d 270, 275.) The “transaction” which is determinative of the relief sought in the declaratory judgment action, the declaration of noncoverage, is the accident which occurred in Du Page County.

Defendants’ contention that dealings with third parties are not to be considered in fixing venue is overbroad when applied in the context of this case. There are cases which use the language that the transaction refers only to dealings between the parties themselves and not to dealings which one of the parties had with third persons which are incidental or prehminary to and do not form the basis for the cause of action. (See American Oil Co. v. Mason (1971), 133 Ill.App.2d 259, 260-261; Winn v. Vogel (1952), 345 Ill.App. 425, 431-432.) But where dealings with third parties have a definite and direct bearing on the cause of action (for the purpose of determining venue), such deahngs are part of the transaction out of which the cause of action arose. (See Bagarozy v. Meneghini (1955), 8 Ill.App.2d 285, 288-291; First National Bank v. Bauer Poultry Corp. (1952), 345 Ill.App. 315.) Our conclusion is buttressed by the fact that section 5(b) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 5(b)) is intended for the convenience of witnesses (Christopher v. West, 345 Ill.App. 515, 527), and the ease of proving local surroundings where these may be material, as in the case of an automobile accident. (Mapes v. Hulcher (1936), 363 Ill. 227, 230-231.) The court correctly ruled below that venue was proper in Du Page County.

In reaching the merits of the case, we view the estoppel issue as crucial and examine the facts bearing on that question.

The accident took place on August 10, 1969, and claims were asserted under the uninsured motorist provisions of the policy on August 27, 1989. The declaratory judgment action was filed on June 23, 1970, and there is no indication in the record that prior to that time Kenilworth either denied coverage or proceeded under a reservation of rights.

Defendants filed an answer to the complaint on November 23, 1970, in which they conceded that there must be physical contact with a hit-and-run vehicle under the terms of the policy, but alleged that such physical contact did occur. Kenilworth thereafter provided a bill of particulars and answered interrogatories in response to defendants’ demands. Essentially Kenilworth informed defendants of the names of persons, including the defendants, from whom statements or information had been received to support Kenilworth’s allegations in the declaratory judgment action that the car crossed into the wrong lanes for no ostensible reason or, in the alternative, to avoid a collision with an unidentified automobile with which there was no physical contact. Following this, on January 20, 1972, defendants, pursuant to leave granted, filed an amendment to their answer which added an affirmative defense of estoppel.

In their affirmative defense, defendants set forth that they had furnished, pursuant to Kenilworth’s request, documentation of the facts of the accident on August 27, 1969; had answered interrogatories under oath on September 3, 1969, and on October 20, 1969; that defendants, pursuant to Kenilworth’s request, submitted medical reports and information as to expenses incurred; and that at no time prior to July 6, 1970, did Kenilworth advise defendant of the policy defense of no physical contact.

Kenilworth filed a motion to strike the affirmative defense, but the record discloses no formal disposition of the motion nor any reply to it. On February 7, 1972, defendants moved for dismissal or judgment on the pleadings based upon the affirmative defense and upon the failure to reply. Kenilworth argued at the hearing on defendants’ motion that no estoppel could he because the declaratory judgment action was brought within 1 year of the accident. The court denied defendants’ motion for judgment on the pleadings adding that the estoppel argument would have had merit if lengthy settlement negotiations had taken place, that as the court understood it no such lengthy negotiations had taken place, but rather that there was a delay alleged by Kenilworth in the investigation of the matter. Counsel for the insureds made no mention at this point of any settlement negotiations.

We can find no reference in the record to support the court’s “understanding” that there had been no lengthy negotiations or that the delay was caused by the insurance company’s investigations. Moreover, it is not entirely clear from the record whether the court, in addition to denying defendants’ motion for a dismissal of the complaint or in the alternative for judgment on the pleadings, was also granting Kemlworth’s prior motion to strike the affirmative defense. It appears from the record that the court’s repeated conclusion that estoppel did not lie as a matter of law was understood by the parties as withdrawing presentation of the estoppel issue from the jury. No evidence bearing on the estoppel issue was presented to the jury at the trial of Kenilworth’s declaratory judgment suit.

Nevertheless both parties, in the hearing on the post-trial motion and in briefs and argument have alluded to factual matters on the estoppel issue. Although no such findings of fact were made below, defendants argue that Kenilworth took the court-reported statements of aU occurrence witnesses and of the defendants between September 8, 1969, and November 11, 1969; that although subsequent statements were taken from some of the witnesses, no subsequent information was obtained by Kenilworth; that Kenilworth possessed all the facts necessary to ascertain whether it had a poficy defense on November 11, 1969, yet it did not advise defendants of the denial of coverage until July 6, 1970; that after November 11, 1969, defendants supplied Kenilworth with medical reports, loss-of-wage statements and other documents; that defendants further expended time in negotiations and “trial preparation” and were lulled into not conducting their own investigation which might have led to finding the identity of the uninsured motorist. Conversely, and again without evidence in the record, Kenilworth argues that it was investigating the facts pertaining to the claims of persons in the other vehicles involved in the accident; that substantial information was gained after November 11,1969; and that the complaint for declaratory judgment was filed within a reasonable time, approximately 3 months after its final investigation of the accident.

Under the state of the record as presented to us we are unable to properly review the trial court’s disposition of the estoppel issue. In fairness to aH parties, in view of the perfunctory treatment of the issue from what does appear of record, we will remand the cause for the limited purpose of deciding the estoppel issue upon amended pleadings if desired and upon the presentation of evidence bearing on the issue. We are justified in this course of action because defendants’ affirmative defense, although inartfully pleaded and argued in the court below, does give rise to the defense of estoppel.

Generally, no intention to waive rights can be inferred against one entitled thereto when he is ignorant of the existence of such rights. (Security Insurance Co. v. Mette (1888), 27 Ill.App. 324, 329.) However, an insurer may waive a policy defense by continuing under a policy when it knows, or in the exercise of ordinary diligence, could have known the facts in question giving rise to the defense. (Zak v. Fidelity-Phenix Insurance Co. (1966), 34 Ill.2d 438, 443; 22 I.L.P. Insurance sec. 356.) If the insurance company is fully advised of the facts bearing on its policy defense and does not then insist on noncoverage but recognizes the continued validity of the policy by requiring the insured to go to the trouble and expense, if any, of preparing proofs of loss and related matter, an intention to waive the policy defense would follow. Traders’ Mutual Life Insurance Co. v. Johnson (1902), 200 Ill. 359, 363; Covenant Mutual Life Ass’n v. Baughman (1898), 73 Ill.App. 544, 549; Rockford Insurance Co. v. Travelstead (1889), 29 Ill.App. 654, 659; 16A Appelman on Insurance (1968), sec. 9258; 22 I.L.P. Insurance sec. 362; 43 Am. Jr. 2d Insurance sec. 1148, p. 1071.

Strong proof is not required to show a waiver of a policy defense, but only such facts as would make it unjust, inequitable or unconscionable to allow the defense to be interposed. (O’Brien v. Country Mutual Insurance Co. (1969), 105 Ill.App.2d 21, 24.) And regardless of the stage of proceedings, an insurer may waive his right to assert non-liability if his actions have prejudiced the insured. (Opheim v. Norfolk & Western Ry. Co. (1970), 123 Ill.App .2d 211, 216.) Further, while a long delay without explanation in asserting a policy defense or disclaimer is normally not enough to constitute an estoppel or waiver, such delay is an important factor to be considered where there is evidence of prejudice; and the length of delay is an element in determining the reasonableness or fairness of the insurer’s conduct toward the insured. See Zak v. Fidelity-Phenix Insurance Co. (1966), 34 Ill.2d 438, 444; Anderson v. Safeway Insurance Co. (abstract opinion 1973), 10 Ill.App.3d 597; McMahon v. Coronet Insurance Co. (1972), 6 Ill.App.3d 704.

Applying these principles on remand the trial court or a jury will have to determine the question of when Kenilworth should have known of its policy defense, how long thereafter Kenilworth delayed in asserting it, what actions defendants took at the request of Kenilworth or in reliance on policy coverage after Kenilworth knew or should have known of its policy defense but failed to assert it, and thus whether Kenilworth acted unreasonably in delaying to assert its policy defense of no-contact. These are questions of fact. Dwelling House Insurance Co. v. Dowdall (1895), 159 Ill. 179, 186; Wide v. Farmers Equitable Insurance Co. (1967), 89 Ill.App.2d 377, 381; Cox v. American Insurance Co. (1913), 184 Ill.App. 419, 423.

We conclude that the finding of the jury in the declaratory judgment action that there was no contact between the defendants’ vehicle and the unidentified vehicle is not against the manifest weight of the evidence, and that there was no evidentiary error sufficient to reverse. Thus, if the estoppel issue is found in favor of Kenilworth the trial court is directed to reinstate the judgment below.

Both Mr. and Mrs. Rygula, as disinterested occurrence witnesses, testified that no vehicles came in contact with or close enough to cut off the Buick being driven by defendant Willie McDougal before it left the Chicago-bound lanes of 1-55. Mr. and Mrs. Johnson, also disinterested occurrence witnesses, did not see any contact but did see a car cut the Buick off. They did not know whether there was any contact. Mr. Johnson testified that he knew that the defendant driver of the Buick was trying to dodge the car that cut over when it hit loose dirt on the side of the road and control was lost. In contrast the four defendants all testified to a violent contact with the vehicle that cut over. There was also testimony of admissions shortly after the accident by one of the defendants that there was no contact and by another of the defendants that she did not know whether there was any contact. Under this state of the record the credibility of the defendants as witnesses was for the jury and its verdict is sufficiently supported by the evidence. See Glazer v. Country Mutual Insurance Co. (1971), 131 Ill.App.2d 586, 590.

Defendants claim that the testimony of Mrs. Rygula was improperly rehabilitated by resort to prior consistent statements after she had been impeached on cross-examination. The question involved related to whether other cars were near the Buick when it went off the road.

Prior out-of-court statements consistent with direct testimony cannot be used to rehabilitate the direct testimony even after impeachment on cross-examination. (Stolp v. Blair (1873), 68 Ill. 541, 543-544; Biela v. Messner (1958), 18 Ill.App.2d 236, 244.) However, to avoid unfairness it is permissible to explain or qualify the impeaching statement from the same document by showing that the impeaching statement was taken out of context or so isolated as to be misleading. (People v. Hicks (1963), 28 Ill.2d 457, 462; Schmitt v. Chicago Transit Authority (1962), 34 Ill.App.2d 67, 72-73.) We conclude from the record that one of the two prior statements here questioned falls within the purview of the latter rule; and the other, while improper from another document taken at another time, was not prejudicial.

For the reasons stated we therefore reverse and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded, with directions.

GUILD and RECHENMACHER, JJ., concur.