text:
      In re Carolyn Overton et al., Minors—(The People of the State of Illinois, Petitioner-Appellee, v. Colene Overton, Respondent-Appellant.)
    (No. 72-386;
    Second District
    August 28, 1974.

      Donald L. Shriver, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The respondent-mother Colene Overton appeals from the July 1972 supplemental decrees of the circuit court of Winnebago County which terminated her parental rights to her five minor children, and which granted to the Department of Children and Family Services of the State of Illinois (Department) the right to consent to the children’s legal adoption. Colene Overton also appeals from the denial of her section 72 motion (Ill. Rev. Stat. 1971, ch. 110, par. 72) which requested the vacation of the decree adjudicating the children to be wards of the court, as neglected minors, and giving custody of the children to the Department as their guardian.

The issues raised on appeal are: (1) whether the trial court erred in finding Colene Overton an unfit mother at the hearing on the supplemental petition to terminate parental rights; (2) whether at this hearing the trial court erred in admitting into evidence statements of the minors made in an out-of-court conference prior to tire hearing; (3) whether Colene Overton may collaterally attack the judgment of neglect in the original neglect hearing on the grounds of denial of substantial constitutional rights; and (4) whether there has been a denial of her constitutional or statutory rights at the original hearing.

On or about August 15, 1970, Colene Overton, who was 4 months pregnant at the time, was injured in an automobile accident. She was in the hospital for 3 weeks and was on crutches for the next 4 to 6 weeks. At the time of the accident she was the sole support of her five children, her husband having deserted her sometime earlier. She was not receiving any public aid, and, thus, had no means of providing for the children after her accident,

Consequently, on August 17, 1970, the assistant State’s Attorney filed petitions under the provisions of section 2 — 4(1) (b) of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 4(1) (b)) to determine that the children, who ranged in age from 9 months to 8 years, were neglected minors because their environment was injurious to their welfare. Also, on August 17, 1970, the court entered a pendente lite order appointing the Department as guardian of the children and giving the Department custody of the children pending resolution of the neglect proceedings. Presumably, the order was entered at a hearing after proper notice was given to the respondent-mother pursuant to sections 3 — 5 and 3 — 6 of the Juvenile Court Act. (Ill. Rev. Stat. 1969, ch. 37, pars. 703 — 5, 703 — 6.) The record is silent as to whether the required hearing was held.

On the same date a summons was issued to the minor children and Colene Overton which directed them to appear on August 21, 1970, to answer the neglect petitions. The summons conformed to the statutory requirements in that it informed them of their right to counsel and their right to have counsel appointed if they could not afford one. (See Ill. Rev. Stat. 1969, ch. 37, par. 704 — 3(2).) The hearing was held on October 28, 1970, which was not within 30 days of the filing of the neglect petition as required by statute. (Ill. Rev. Stat. 1969, ch. 37, par. 704 — 2.) The record is silent as to the cause of the delay.

At the hearing on October 28, 1970, no report of the proceedings was kept, although a legal secretary took notes. These notes and the common-law record are less than adequate in providing a record of what transpired at the hearing. Both are silent as to whether the court informed Colene of her rights to counsel and appeal as required under section 1 — 20(1) (3) of the Juvenile Court Act. (Ill. Rev. Stat. 1969, ch. 37, par. 701 — 20(1)(3).) The court found the children to be neglected minors because their environment was injurious to their welfare and adjudged them to be wards of the court. The court further ordered that the children be committed to the Department of Children and Family Services of the State of Illinois as their appointed guardian.

On March 1, 1972, the assistant State’s Attorney filed a petition for supplemental decrees, requesting that the Department be authorized and empowered to consent to the legal adoption of the children, thereby terminating all parental rights of Colene Overton. The assistant State’s Attorney alleged that Colene was unfit to retain parental rights or custody of the children because, “(1) she has failed to maintain a reasonable degree of interest, concern or responsibility as to tire children, (2) she deserted the children for more than three months next preceding the filing of the petition.”

After a hearing on the issues was held on July 21, 1972, the court found that the State had proved the allegations set forth in its petition. The court entered the supplemental decree authorizing the Department, as guardian for the children, to consent to the legal adoption of the children and terminated all parental and legal rights of Colene Overton with respect to the children.

Respondent Colene Overton contends the court erred in finding her an unfit mother. We agree. As we stated in In re Interest of Moriarity (1973), 14 Ill.App.3d 553, 556, 302 N.E.2d 491, 493, “[t]he rights of natural parents to their children cannot be severed unless a clear and convincing case is presented in strict compliance with the Adoption Act.” In re Adoption of Walpole (1955), 5 Ill.App.2d 362, 125 N.E.2d 645; In re Petition to Adopt Cech (1972), 8 Ill.App.3d 642, 291 N.E.2d 21.

First, we find that the trial court did not strictly comply with the provisions of the Adoption Act in finding that Colene Overton had deserted her children within the meaning of that Act. (Ill. Rev. Stat. 1971, ch. 4, par. 9.1 — ID(c).) Desertion, as used in the Act, is such conduct by the parent as to indicate the parent’s intention to permanently terminate custody over the child but not relinquish all parental duties and claims to the child. (Thorpe v. Thorpe (1964), 48 Ill.App.2d 455, 198 N.E.2d 743; In re Petition of Smith (1972), 4 Ill.App.3d 261, 280 N.E.2d 770; In re Petition to Adopt Cech, supra.) In consideration of the question of desertion, primary consideration must be given to the intent of the parent. (In re Walpole’s Adoption, supra, Thorpe v. Thorpe, supra; Petition of Smith, supra.) The mere fact of physical separation does not necessarily constitute desertion. (In re Deerwester (1971), 131 Ill.App.2d 952, 267 N.E.2d 505.) In the case before us, the court expressly stated that the question of desertion was not a matter of intent; thereby basing his decision only on the mother’s physical separation from her children for a 3-month period. Accordingly, we must reverse the finding of the court that Colene Overton deserted her children as the finding was not in strict compliance with the Adoption Act.

Second, the trial court’s finding that Colene Overton failed to maintain a reasonable degree of interest, concern or responsibility as to the children’s welfare was not based upon clear and convincing evidence. (Ill. Rev. Stat. 1971, ch. 4, par. 9.1 — lD(b).) The finding was primarily based upon the fact that from the time Colene Overton recovered from her injuries to June 1971, she visited her children only 3 times; that from June 1971 until about November 1971 she left Illinois and went to Missouri to live and did not see her children; that she sent no cards or gifts to the children; and that her paramour was a bad influence upon her children and the children disliked him.

In regard to Colene’s visitation, we note that while Colene’s case worker did not expressly refuse Colene’s right to visit her children, he did not encourage her to visit her children. It is apparent from the record that the case worker felt it was in the best interests of the children that Colene should not visit them and that his feeling was communicated to Colene.

In regard to her moving to Missouri, we note that the move was for the purpose of starting “a new life.” She wrote the Department concerning her trip, gave her new address, and informed the Department that school in Missouri began in August rather than in September. The letter also communicated to the Department Colene’s concern for her children. The Department, however, never communicated with Colene while she was in Missouri concerning her move or her children. In fact, the Department waited until November 15, 1971, to inquire of the Missouri Public Aid Department concerning Colene.

In regard to gifts, we note that the one gift sent to her children was never delivered by the Department to the children.

In regard to Colene’s paramour, we note that he was her only means of support and that she was dependent upon him to provide transportation as she could not drive.

The Department thus placed Colene between “Scylla and Charybdis.” If Colene did not see her children frequently enough the Department was prepared to and did file a petition alleging that Colene did not show reasonable interest, yet, if she insisted upon seeing her children in opposition to the feelings of her case worker, her case worker may not have recommended the return of her children. If Colene left Rockford, it would also be evidence of her lack of interest in her children; yet, if she stayed, she would not have any reasonable expectation of ever being able to support her children and thus gain their return. If Colene stayed with her paramour, this would be evidence of lack of concern for the children; yet, if she left him, she would be without any support except public aid. Additionally, in order to steer Colene through these perilous straits, the Department gave her as her helmsman a case worker who visited her only once every 2 months, who did not respond to her letter while she was in Missouri, and who did not adequately inform Colene of the consequences of her actions.

The conduct of the Department virtually insured that once Colene was separated from her children she would eventually lose them permanently. Accordingly, we must also reverse the finding of the court that Colene failed to maintain a reasonable degree of interest, concern, or responsibility as to the children’s welfare as there has not been a clear and convincing case presented showing unfitness on this ground.

Because the court’s judgment concerning adoption is reversed, we need not consider the other issues raised by the respondent which concern this proceeding.

Counsel for the respondent next contends that the original neglect decrees must be vacated because the court failed to inform Colene at the hearing of her right to counsel, her right to have counsel appointed if she could not afford counsel, and her right to appeal contrary to the provisions of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 701—20) and the due process clause of the fourteenth amendment of the U. S. Constitution.

Respondent’s counsel, who was not appointed until after the petition for supplemental decrees had been filed, and after the time for appeal had run out, raises this argument collaterally in a section 72 motion. (Ill. Rev. Stat. 1971, ch. 110, par. 72.) A section 72 motion, however, is not a proper vehicle to collaterally attack an alleged denial of constitutional rights. (See, People v. Warr (1973), 54 Ill.2d 487, 298 N.E.2d 164.) Nor are the other traditional methods of collaterally attacking a judgment (i.e., habeas corpus and post-conviction relief) available to the respondent in her effort to attack the neglect order. See People v. Warr, supra; cf., In re Owens (1972), 51 Ill.2d 583; 283 N.E.2d 892.

However, where the court has not terminated all legal rights of the parents in the child, the parents have a right to petition the court for restoration of parental rights and change of custody. (See, Ill. Rev. Stat. 1971, ch. 37, par. 705—8; see also, Giacopelli v. Florence Crittenton Home (1959), 16 Ill.2d 556, 158 N.E.2d 613 (habeas corpus is a proper method for determination of the custody of a child in a dispute between natural parents and third parties); cf. People ex rel. Bukovich v. Bukovich (1968), 39 Ill.2d 76, 233 N.E.2d 382.) The order of the court depriving the parents of custody of their child is a continuing order which is only res judicata as to the facts which existed at the time the order was entered and is subject to modification by the court. In re Ramelow (1954), 3 Ill.App.2d 190, 121 N.E.2d 41; Oeth v. Erwin (1955), 6 Ill. App.2d 18, 126 N.E.2d 526.

At such hearing concerning the restoration of parental rights a parent may raise the question of denial of statutory and constitutional rights at the former neglect hearing. Although a hearing into the question of restoration of parental rights in a neglected child and change of custody is necessarily confined to ascertaining what is in the present best interests of the child (see Giacopelli, supra, and People v. Hoerner (1972), 6 Ill.App.3d 994, 287 N.E.2d 510) and does not require relitigation of the facts which formed the basis of the original neglect decree, the question of whether a parent has been neglectful in the past may be relevant to whether the parent has been rehabilitated and has the present ability to properly care for his child. Therefore, where there has been a patent denial of statutory or constitutional rights of parents at the original neglect hearings, the court at this hearing has an obligation and duty to make a searching inquiry into the fairness and correctness of the former decision of neglect.

We note, however, that the ultimate question which must be answered by the court in this hearing is what is in the best interests of the children. (Giacopelli, supra, and Hoerner, supra.) The court’s resolution of this question depends upon the court’s weighing many different variables. The present mental and physical ability of the parent to care for the child is just one variable the court must weigh and, while important, it is not necessarily conclusive of the best interests of the child. (See Petition of Breger v. Seymour (1966), 74 Ill.App.2d 197, 219 N.E. 2d 265.) Thus, even if the court finds that the prior neglect hearing resulted in an incorrect decision due to a denial of some constitutional right, this finding is not determinative of the issues in this hearing, and does not require an automatic restoration of custody to the natural parent. The court must still decide what is in the best interests of the child in deciding the issue of custody.

Thus, while counsel for the respondent can properly raise the issue of denial of counsel at a neglect hearing by petitioning the court in relation to custody of the child, he cannot do so by a section 72 motion which attacks the neglect decree itself. Consequently, the appeal from the denial of the section 72 motion is dismissed. Accordingly, we express no opinion as to the merits of the respondent’s contention.

For the foregoing reasons the supplemental decree, which terminated Colene Overton’s rights to her five minor children and which empowered the Department of Children and Family Services of the State of Illinois to consent to the children’s legal adoption, is reversed and respondent’s appeal from the court’s denial of her section 72 motion is hereby dismissed. We note that nothing in this decision precludes the State from filing another supplemental petition or precludes Colene Overton from filing a petition to restore her parental rights and for custody.

Appeal dismissed in part and reversed in part.

T. MORAN, P. J., and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE RECHENMACHER

license: Public Domain

text:
    Robert D. Carpenter, Plaintiff-Appellant, v. Helen E. Carpenter, Defendant-Appellee.
    (No. 73-30;
    Second District
    August 28, 1974.
    Lewis V. Morgan, Jr., of Wheaton, for appellant.
    Jacobs & Spencer, of Villa Park, for appellee.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

This case presents only one question: Where a divorce decree provides (in accordance with an agreement between the parties) for child-support payments for “minor” male child (or children) and subsequent statute reduces the age of majority of males from 21 to 18 years, which age is applicable in construing the word “minor”?

Mr. Carpenter, the divorced husband, appealed from the order of the circuit court of Du Page County, denying his post-decree petition requesting termination of his child-support obligation for his son, Richard, who attained the age of 18 years on June 13, 1971, and the application of child-support payments made by him after Richard reached age 18 as a credit on his child-support arrearage. He invoked the amendment of section 131 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 131), reducing from 21 years to 18 years the age of majority for males. It became effective on August 24, 1971, and as amended provides as follows:

“Persons of the age of 18 shall be considered of legal age for all purposes * * *, and until this age is attained they shall be considered minors.”

The divorce decree which was entered in July of 1970 incorporated the terms of a negotiated property settlement agreement between the parties whereby, among other things, the husband (appellant herein) agreed to “pay to the wife the sum of $450 per month child support for the three minor children of the parties hereto, being the sum of $150 per month per child.” All three children were boys. Charles, the oldest, was 20 years old at the time of the decree and had reached his 21st birthday shortly thereafter. Richard was then 16 years of age and Lance, the youngest, was 12 years old.

At the time of the decree and the property settlement the statute in question provided that males of the age of 21 were considered of legal age, and until that age was attained were considered minors, while the age of majority for females was 18.

It should be noted in passing that on October 21, 1971, almost 2 months after the effective date of the amendment reducing the age of majority for males from 21 to 18, the appellant filed his petition for reduction of child-support payments with respect to Richard, pursuant to which an order was entered by the circuit court of Du Page County reducing such payments from $150 to $80 per month. Appellant’s brief states that when he did so he was unaware of the enactment of the amendment.

In Wilcox v. Wilcox (Ky. 1966), 406 S.W.2d 152, the court was presented with the very same question that we have here. In that case the decree was based upon a negotiated settlement which provided for child-support payments by the father until the child reached the age of majority (or became self-supporting). Subsequent legislation reduced the age of majority from 21 to 18. That court held that the father was not entitled to relief terminating child-support payments despite the intervening legislation reducing the age of majority, and that the father was required to make such payments until age 21. See also Collins v. Collins (Ky. 1967), 418 S.W.2d 739, and, Kirchner v. Kirchner (Ky. 1971) 465 S.W.2d 299.

In Waldron v. W'aldron (1974),. 13 Ill.App.3d 964, the provision for child-support payments in. the divorce decree was not based upon a negotiated settlement (as in the instant case and as in Wilcox, supra). The decree, in that case entered when the legal age of majority of males was 21, required the father to pay “$180 per month for each of the [two male] minor children of the parties as child support, this being a total of. $36.0, pet rnopth,” In, holding that the father remained, obligated to pay support until his son reached the age of 21 years, the court said at page 967:

“[I]t has long been a rule of construction in determining the meaning of judgments or decrees that one must examine the situation as it existed at the rendition of the judgment. [Citation.] Tire situation as it existed at the rendition of the divorce decree included a statutory provision that the age of majority for males was twenty one years.”

In the instant case the decree incorporated a negotiated settlement requiring the father to. pay chüd-support payments for the (male) minor children of tire parties. On the date of the agreement and the decree it was contemplated that such payments would continue until the children attained age 21 which was then the statutory age of majority for male children. The intervening amendment reducing to 18 the age of majority from 21 did not affect the father’s obligation to pay child support until age 21 or until the child was emancipated.

Therefore, the judgment of the circuit court of Du Page County is affirmed.

Judgment affirmed.

GUILD and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    Herget National Bank of Pekin, Conservator of the Estate of Walter LeRoy Beeney, an Incompetent, Plaintiff-Appellant, v. Roxann Johnson et al., Defendants-Appellees.
    (No. 73-329;
    Third District
    August 28, 1974.

      Elmo E. Koos, of Peoria, for appellant.
    Stephen Buckley, of Quinn & Buckley, of Peoria, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This action was brought to recover damages for personal injuries to Walter LeRoy Beeney, an incompetent, occasioned by the negligence of the defendant Roxann Johnson in driving an automobile. After a jury verdict in favor of defendant, the Circuit Court of Tazewell County entered the judgment from which this appeal is taken.

The ruling issue is whether the trial court erred in allowing defendant to introduce evidence that in the fall of the previous year a witness saw Walter Beeney (hereinafter referred to as plaintiff) operate his bicycle at night without lights.

On January 3, 1970, plaintiff was riding his bicycle in a northerly direction on Fifth Street Road between South Pekin and Pekin, when he was struck from the rear by the automobile operated by defendant. He had been to South Pekin to visit a friend and was riding back toward his home in Pekin when defendant ran into him. It was then between 7 and 7:30 in the evening; it was dark and snowing. He testified that he had on all of his lights and they were working.

Defendant was a 16-year-old girl who had recently learned to drive. She lived in South Pekin and was driving North to visit her girl friend in Pekin. It had snowed that day and the road was icy and snow-packed. It was snowing quite hard but she could see a reasonable distance and could see better with the lower beam of lights. There was no traffic and had been none in either direction. She was driving at about 40 miles per hour when she came over the crest of a rise and saw a reflector on the right side of the road. She had no idea how far away the reflector was but she swerved to the left and applied her brakes. The car commenced spinning around in circles out of control. Although she never did see plaintiff or his bicycle, she knew she hit someone, especially after a handlebar came through a comer of her windshield. Plaintiff was taken to the hospital where he was treated for a comminuted fracture of the scapula and various lacerations, abrasions, and contusions. A permanent limitation of motion in the shoulder resulted.

Lowell Green, who was then a deputy sheriff, investigated the accident shortly after 7 o’clock the same evening. Because of marks in the snow, he could determine that the point of impact was close to the right edge of the pavement. He never did find the bicycle and assumed that it was stolen as it was never found.

Over objection he was permitted to testify that, in the fall previous, in the same general area, he almost had an accident when suddenly the plaintiff loomed in front with no fights on his bicycle.

The general rule is that evidence of conduct of a person on another occasion or occasions is irrelevant on the question of his conduct on the occasion in issue, except to show habit, state of mind, knowledge or intent and the like. (Card, Illinois Evidence Manual, rule 88 (1963).) Evidence of other specific, though similar acts, may not be proven simply to show that, having done the same thing before, the person is likely to have done it on the occasion in issue. This would open the door too wide to the trial of side issues to the neglect of the immediate issue to be resolved. (Card, supra, comment to rule 88.) Flesburg v. Prince Warehouse Co., 37 Ill.App.2d 22; Tuthill v. Belt Ry. Co., 145 Ill.App. 50, 55.

Defendant contends first that the plaintiff’s post-trial motion did not specify the error thus waiving the matter. The record shows that in fact plaintiff was allowed by the court to amend his post-trial motion to include as error the admission at trial of testimony about a prior incident where Mr. Beeney did not have his fights burning on his bicycle at night. The order of the trial court was that the post-trial motion as amended was denied. There is no merit to this contention of defendant.

Defendant next contends that plaintiff neither objected nor moved to strike the answer. The record shows six objections by plaintiff. The final question was asked and answered before plaintiff s counsel had a chance to object. He then objected. The court obviously considered this as a motion to strike since the court stated, “The answer may stand.” There is no merit to this contention of defendant.

Defendants next argue that plaintiff opened the door to the admission of the evidence. Plaintiff’s attorney asked Vera Beeney, plaintiff’s sister, “What were your brother’s habits with that bicycle?” She replied, “You mean as far as riding it?” He said, “And caring for it.” The answer was, “He cared for his bicycle. He kept it in good condition. He always washed and polished it and kept things up on it.” If one party’s evidence opens up an issue and the other party wiU be prejudiced unless he can introduce contradictory or explanatory evidence he should be permitted to do so (18 I.L.P. Evidence § 44 (1956)), although the evidence should not be admitted if it is otherwise improper and no prejudice wiH result from the unexplained prior evidence. (18 I.L.P. Evidence § 44 (1956); 31A C.J.S. Evidence § 190 (1964).) The rule wiU not permit a party to introduce evidence which should not be otherwise admitted merely because the adverse party has brought out some evidence on the same subject. Frochter v. Arenholz, 242 Ill.App. 93, 98.

Defendant argues that the testimony that plaintiff had no Hghts on a prior occasion was offered and allowed to show habit. In Illinois it has long been the recognized rule of a personal injury and wrongful death actions arising out of motor-vehicle accidents that evidence of habits and customary behavior of one killed or injured by the alleged negHgence of another is admissible on the issue of the former’s conduct at and immediately prior to the time of the accident. IUinois stiU adheres to the principle that the rule is one of necessity, available only where there are no competent eyewitnesses. (Gard, Illinois Evidence Supp., rule 104 (1974); McElroy v. Force, 75 Ill.App.2d 441, affd, 38 Ill.2d 528, 534; McInturff v. Chicago Title & Trust Co., 102 Ill.App.2d 39, 46; Hunter, Trial Handbook, § 75.7 (4th ed. 1972); 28 I.L.P. Negligence § 247, at 227 (1957).) Both defendant and plaintiff were caUed upon to testify. No question of incompetency under section 2 of the Evidence Act (Ill. Rev. Stat. 1973, ch. 51, par. 2) arose. The argument is that because defendant testified that she never did see plaintiff on his bicycle that therefore she was not an eyewitness and further, that because plaintiff was somewhat deficient mentally he was not a competent eyewitness. It is not necessary that an eyewitness see everything that occurred at the accident scene. (Plank v. Holman, 46 Ill.2d 465, 469.) Further, the plaintiff himself was a competent eyewitness as to whether or not he had his lights on. He understood the nature of an oath and had sufficient mental power to give a correct account of what happened to him. He had the capacity to observe, recollect, and communicate. His mental deficiency is considered only in so far as it affects the weight to be given his testimony. 37 I.L.P. Witnesses § 23 (1958); Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 578.

During cross-examination of Walter Beeney, the defendant’s attorney asked, “At any time prior to this night had you ever ridden your bicycle without lights, on the highway?” The answer was “No.” On cross-examination of Vera Beeney the defendant’s attorney asked, “So it is your testimony he always had lights on when he rode the bicycle?” The answer was “yes.”

Defendant argues that the testimony of Deputy Green was competent to contradict. A witness may not be contradicted as to collateral, irrelevant or immaterial matters, and if a party brings out such matters on cross-examination, he may not contradict the witnesses’ answers. (37 I.P.L. Witnesses § 251 (1958); 58 Am. Jur. Witnesses §§ 782-784 (1948); 98 C.J.S. Witnesses § 633 (1957); McCormick, Handbook on Evidence, § 47 (2d ed. 1972); Ray v. Cock Robin, Inc., 10 Ill. App.Sd 276, 286.) As to whether the matter is collateral within the rule the test is whether the party seeking to introduce it for purposes of contradiction would be entitled to prove it as part of his case or if it could be shown in evidence for any independent purpose. There are two classes of facts of which such evidence is admissible: (1) Facts relevant to some issue in the case under the pleadings; (2) facts admissible to discredit the witness as to interest, bias, motive, corruption, or the like. All matters not within these two classes are usually considered collateral.

It is finally argued that there was no prejudice to plaintiff in allowing the admission of the evidence. Defense counsel himself stated, “It is obviously prejudicial.” We agree.

The judgment of the Circuit Court of Tazewell County is reversed and the cause is remanded to the court for a new trial.

Reversed and remanded.

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


author: Mr. JUSTICE SIMKINS

text:
    Howard Riley Homes, Inc., Plaintiff-Appellee, v. Francis W. Wenzel et al., Defendants-Appellants.
    (No. 12369;
    Fourth District
    August 28, 1974.
    Giffin, Winning, Lindner, Newkirk, Cohen, Bodewes & Narmont, of Springfield, for appellants.
    Edward F. Casey, of Casey & Casey, of Springfield, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The defendants appeal from the judgment against them in the sum of $1563.86 found by the trial court to be due plaintiff in connection with construction of defendants’ home.

On October 28, 1971, the plaintiff building contractor entered into a contract with defendants for the construction of a single family dwelling in Springfield, Illinois. The three-page contract contained 14 paragraphs specifying some materials to be used in the construction, and providing dollar allowances for things to be selected such as electrical fixtures, cabinets, appliances and floor covering. The paragraph pertaining to interior walls provided for a specific paneling to be used in two of the rooms of the house, and also provided “Decorating: Purchasers have choice of colors throughout.”

At the closing, the plaintiff presented defendants with a statement of charges for certain extras, in addition to the contract price of $74,500. Defendants did not contest the extra charge for a refrigerator, electrical fixtures over and above the allowance in the contract, and an additional outlet for the vacuum system, but refused to pay for the purchase and installation of wallpaper on the grounds that wallpaper was a part of “Decorating” covered by the contract.

At a bench trial commencing on January 22, 1973, the plaintiff called only one witness, Mr. Howard Riley, who testified that wallpaper is not covered by the contractor’s obligation to decorate the house, since the quality of paper the individual owner will desire or the number of rooms to be covered cannot be estimated in advance and this testimony embodies plaintiff’s theory of recovery. Plaintiff testified that he painted all eight rooms of the house to the defendants’ choice of color, that a request for wallpaper was made sometime in January, 1972, and that he then recommended a particular place for the defendants to go and choose the wallpaper they desired. Plaintiff testified that he engaged a subcontractor to hang the paper. On cross-examination regarding the time in January when the defendants first brought up the subject of wallpaper, plaintiff said, “I assumed at that time that everybody completely understood the contract and what my bid included.” He further testified that at that time neither party knew the amount of wallpaper to be used and that the first time he advised the defendants of the total bill for the wallpaper and that he considered it an extra to be paid for over and above the contract price of $74,500, was in June 1972 when he presented the final statement.

The defendants’ testimony corroborates the plaintiff’s to the effect that the matter of wallpaper was never mentioned at the time the contract was made, but rather during the course of construction several discussions occurred concerning the quantity needed and the choice of patterns. However, there was no discussion about the cost being included in the contract or whether it was an extra. Defendants testified to substantially the same conversations about wallpaper, and that the plaintiff suggested the place to purchase the paper, helped coordinate the colors, and secured the paper hanger. The defendants testified that the plaintiff had told them, and that they understood, that such things as the refrigerator and additional light fixtures over and above the contract allowance were extras, which the defendants would pay for, but that plaintiff had never mentioned that wallpaper was an extra. The defendant Wenzel testified that he assumed wallpaper was included when he signed the contract.

The trial court found in favor of the plaintiff and entered judgment against the defendants for $1563.86.

In order for plaintiff to recover in this case he must establish the following propositions:

1) That he had not agreed, in the contract, to perform the work in question and that it was, therefore, an “extra” and
2) That prior to performing the work he had so notified the owner and
3) That the owner had consented to the installation as an “extra”. There is no evidence in this record to support the latter two propositions.

The notification to defendants was given at the time of closing, after the work was accomplished and the house completed.

In the absence of an express or implied agreement, a contractor is not entitled to compensation for changes made or extra work performed. A building contractor must make his position, in reference to furnishing an extra not required to be furnished by the building contract, clear at the time the owner has to decide whether he shall incur the extra liability since fairness requires that the owner have an opportunity to make such a decision. Watson Lumber Co. v. Guennewig, 79 Ill.App.2d 377, 226 N.E.2d 270.

Defendants rely strongly on the Watson case for its holding that a buyer cannot be held liable for extra put into building unless he knew the nature and extent of the liability before it was incurred so that he could control his own liabilities, with the law requiring evidence of his consent to be shown before he can be charged for an extra. The plaintiff contends that since the wallpaper was requested by the defendants, this case is distinguishable from those where a contractor unilaterally adds extras. It is true that Watson also held that a contractor should not be required to furnish items that were clearly outside the parties’ agreement, and that the buyer has no right to expand the nature or extent of the contractor’s obligation. However, even if the defendants initiated the installation of the wallpaper, the plaintiff himself characterizes the wallpaper as an “extra,” which he must since, if not an extra, it would clearly be includable in the contract price. The plaintiff did work and supplied material intending to charge extra for it, and did not communicate that intent to the defendants so that they could give consent or perhaps choose other wallpaper or perhaps use less of it. That characterization, as an extra, added to the fact that plaintiff seeks compensation in addition to the contract price, clearly calls into force the language in Watson that the building contractor must make known in advance, his position with reference to furnishing an extra, to afford the owner an opportunity to decide whether to incur that extra liability.

Although there is no apparent bad faith on the part of this contractor-plaintiff or the owner-defendant, and each held divergent views on the matter of wallpaper, the contractor cannot prevail since he is seeking to recover an amount over and above the contract price without establishing either that the owner was informed that the contractor considered the wallpaper to be an extra, or consented to that extended liability.

Judgment reversed.

SMITH, P. J., and TRAPP, J., concur.


text:
    Marian Dean Graham, Plaintiff-Appellant, v. Roy A. Graham, Defendant-Appellee.
    (No. 12425;
    Fourth District
    August 28, 1974.

      David N. Howarth, of Howarth Law Offices, of Springfield, for appellant.
    Phelps, Russell, Carmody & Kasten, of Springfield (Carl E. Kasten, of counsel), for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Plaintiff-appellant Marian Dean Graham appeals from an order, entered July 13, 1973, which modified the child support and visitation provisions of the divorce decree.

Plaintiff and defendant-appellee Roy A. Graham were divorced on May 15, 1970. They are the parents of two children, Carole and Geoffrey, aged 5 and 3 at the time of the divorce decree. The parties had agreed to disposition of property, child support, custody and related matters. The trial judge approved the agreement, and in accord with its provisions awarded custody of the children to plaintiff with “reasonable visitation” to defendant, and, as agreed by the parties, ordered defendant to pay the sum of $20 per week child support until July 1, 1971, and thereafter $30 per week until the further order of the court, and to pay all medical bills incurred on behalf of the children plus hospital and medical insurance for them.

On November 16, 1972, defendant petitioned for modification of the decree. On March 23, 1973, the trial judge modified the decree by increasing child support to $160 per month to commence February 6, 1973 (the date of the hearing on the petition), and relieved defendant from the obligation to provide medical care and related insurance coverage.

On May 22, 1973, defendant filed his second petition for modification. He sought to be relieved of the $160 per month child-support obligation, alleging that he would have no income after June, 1973 and that this circumstance would prevail until he completed his Doctor’s degree. After hearing, tire trial judge, on July 13, 1973, entered the order appealed from, the essential terms of which provided that child support was reduced to $80 per month as of August 1, 1973, and was to continue at that figure until August 1, 1974, at which time the payments were to be resumed at $160 per month. The order also found defendant to be $226.18 in arrears on child support and directed this to be paid off at the rate of $20 per month. Visitation was modified from “reasonable visitation” to give defendant visitation with the children every other weekend and alternate holidays. The order contained a finding that the above modifications were in the best interests of the children.

The record establishes the following pertinent facts: Plaintiff has remarried, and is employed by Springfield School District No. 186 at an annual salary of $9216. Defendant was an English instructor at Blackburn College in Carlinville, Illinois. Commencing in July, 1973, he went on unpaid leave of absence in order that he might finish his Ph.D. at the University of Illinois. He had commenced work on the degree in 1967 and has worked on it every summer since then, plus the academic year 1970-71, and the academic year 1973-1974 (which was in immediate prospect at the time of the entry of the order appealed from). Defendant financed his studies during the academic year 1970-71, during which he was on leave of absence from Blackburn College, by a loan from that college. The school assisted him in his endeavor to secure his doctor’s degree by making him a $5000 loan. The loan agreement provides that for each year that defendant retains bis teaching position at Blackburn, after receiving his degree, his obligation will be credited in the sum of $1000 plus the interest accrued for the year. After five years of teaching the entire debt would thus be cancelled.

In January, 1973, the defendant was advised by the University of Illinois that his time period for the completion of his degree had expired. He was further advised that if he were to be allowed to finish the degree he would be required to establish evidence of his intention to do so, to fix a specific date for completion, convince his advisor that he could accomplish the task within the time limits established, and demonstrate that he would be working to attain the degree. The defendant had commenced work on his doctorate in 1967, during his marriage to plaintiff. If the foregoing conditions were not met, defendant’s efforts and financial investment made since 1967 would have been wasted. In addition he would have immediately become hable to repay the entire $5,000 loan, with interest, to Blackburn College.

Defendant received his last check from Blackburn in June, 1973; his leave of absence expires in June, 1974. He estimated that he would have no income during his year at the University of Illinois. His only significant asset is an automobile upon which he believed he could secure a $1,000 loan. Defendant testified that having his doctor’s degree would give him something to negotiate with on his job, and that without such a degree it would be impossible to get on the application list for another job.

The plaintiff urges that the trial judge abused his discretion in reducing defendant’s child support obligations since defendant had voluntarily placed himself in a position where he would have no income.

Section 18 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 19) authorizes the trial court, “* * ” on application, from time to time • * to terminate or alter child support provisions previously ordered. The modification of provisions for payment of child support rests in the sound discretion of the trial court, and an order modifying such provisions will not be disturbed on review unless the record demonstrates an abuse of that discretion (Scalfaro v. Scalfaro, 123 Ill.App.2d 23, 259 N.E.2d 644). The burden of demonstrating circumstances warranting modification is on the party seeking the modification. Daum v. Daum, 11 Ill.App.3d 245, 296 N.E.2d 614.

Defendant’s response to written interrogatories answered in connection with the petition which resulted in the March 23, 1973, modification order clearly indicates his belief, at that time, that he did not anticipate that he would need to be relieved of his teaching duties for an entire academic year at Blackburn. At that time he believed that he could attain the degree by attending summer school, as he had done in the past, and work out of his home in CarlinviUe. He no longer believed this to be possible at the time of the hearing on the petition which resulted in the order of July 13, 1973.

Gaines v. Gaines, 106 Ill.App.2d 9, 245 N.E.2d 574, is cited for the proposition that a change of circumstance must be “permanent” before modification of a decree is warranted. In Gaines it was held that loss of pay because of suspension from the Chicago Police Department for a period of five days was not a permanent change in defendant’s circumstances warranting “permanent reduction” in support payments,' and the holding in Gaines is to be read in the context of the factual circumstances there present. In Lewis v. Lewis, 120 Ill.App.2d 263, 256 N.E.2d 660, the trial court reduced the amount of child support from the sum previously ordered. Defendant’s income had been reduced because he had changed jobs. The modification was affirmed on appeal.

In Hamill v. Hamill, 38 Ill.App.2d 180, 186 N.E.2d 781, the court held that petitioner’s loss of income under the G.I. Bill of Rights was not a sufficient showing of change of financial circumstances warranting modification of the decree. It is impossible to tell from the opinion in Hamill whether or not the defendant had voluntarily left school prior to graduation or had simply quit. However, the court pointed out that the petitioner had substantial income from stock and bond interest and dividends, that the child support in question had, in fact, been paid by petitioner’s father and that at the time of the hearing the petitioner was driving an expensive automobile, living in a house furnished by his father and spending more than the child support in question for entertainment, telephone and automobile expenses.

In Martinec v. Martinec, 17 Ill.App.3d 402, 308 N.E.2d 161, the defendant appealed from an order reducing child support payments from $140 a month to $60 a month. The order also provided that the reduction would remain in abeyance and accrue to the benefit of the minor child and that the plaintiff would not be required to pay the same until he completed or terminated his college education and was available for full time employment. The plaintiff had quit his job as a full-time policeman for the city of Chicago and had become a full-time college student. It was held that “a voluntary change in occupation or employment made in good faith may constitute a material change in circumstances sufficient to warrant a modification of child support payments.” The appellate court observed that the plaintiff had acted in good faith in leaving his position as a Chicago police officer with a view to becoming a lawyer. The court found that this change in occupation was made in good faith and found that the reduction of support payments ordered by the trial court did not constitute an abuse of discretion. The Martinec court cited with approval the case of Roberts v. Roberts, 1 Ore. App. 106, 459 P.2d 562. There the court had ordered tire reduction in support payments. The defendant had sold his dental practice which earned him some $18,000 per year and returned to school, so that his present income was sharply diminished. The Roberts court noted that the reduction in the support payments would be only a temporary reduction while the defendant was in school and would be subject to review at a subsequent date.

Here, the record amply demonstrates that defendant’s request for reduction of child-support payments for the period covered by the order in question was not prompted by a desire to evade his responsibility. His efforts to better his academic bargaining position and job security had been commenced some five years prior to the request. The condition imposed by the University of Illinois posed for defendant the prospect of the forfeiture of five years of effort, in addition to rendering due the $5,000 note and accrued interest. The order of the trial judge did not relieve defendant of all responsibility for child support for the period in question. The amount ordered paid is approximately equal to the loan value of his only significant asset, the automobile. Here the defendant’s temporary cessation of income, incurred voluntarily, but in good faith, prompted the trial judge, in the exercise of judgment and discretion, to enter the questioned order. We find no abuse of that discretion.

Plaintiff also complains of the order of the trial judge which directed defendant to pay off an arrearage in child support amounting to $226.18 at the rate of $20 per month beginning August 1, 1974. The recipient of child-support payments has a right in arrearages accruing before the date of the petition (Needler v. Needler, 131 Ill.App.2d 11, 268 N.E.2d 517), and the court may not modify such payments in which a party has a vested right. It appears that the arrearages here in question had accrued following the filing of the petition, and, therefore, plaintiff had no vested rights therein, and the trial judge had jurisdiction to enter the order.

We have considered plaintiff’s contentions relating to the modification of visitation privileges and find no merit therein.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. PRESIDING JUSTICE SMITH Mr. JUSTICE TRAPP

text:
    Joseph Collins, Plaintiff-Appellee, v. Montgomery Ward & Co. et al., Defendants-Appellants.
    (No. 11845;
    Fourth District
    August 8, 1974.

      Rehearing denied September 12, 1974.

      TRAPP, J., dissenting.
    Harold F. Tenney, of Armstrong, Winters, Prince, Tenney & Featherstun, of Decatur, for appellants.
    Rosenberg, Rosenberg, Bickes & Johnson, of Decatur (David L. Johnson, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This is an appeal by both defendants from a judgment of the circuit court of Macon County entered on a jury’s verdict awarding the plaintiff $10,000 for injuries sustained in a fall from a ladder. The bare-bones questions left in the case are: (1) Does the indemnification agreement between plaintiff and defendant Ward exculpate Ward from any liability to the plaintiff? That question we answer “No.” (2) Was there sufficient evidence in this case to take the case to the jury on the question of defective design? This question we answer “Yes.”

On April 16, 1969, the plaintiff entered into a contract with Ward in Decatur as an independent installer of aluminum siding. On April 21, he purchased from Ward a 24-foot aluminum extension ladder which had been manufactured by the defendant Werner. The ladder came in two sections. Three days after the purchase, the plaintiff used the separated sections of the ladder to erect a ladder jack scaffold for applying aluminum siding to a house. Plaintiff had done this type of work for over 20 years and was accustomed to using ladders, jacks and scaffolds and was acquainted with the usual and customary safety methods in the use of ladders. He had read the “Ladder Safety Instructions” on the ladder. Working alone, he placed the base section of the ladder, that is, the one with the feet, on a wooden patio elevated about 6 inches above the ground level towards the east end of the south side of the house. The other section (referred to as the “fly” section) was placed about 14 feet to the left of the base section. The bottom of this section was in a strawberry patch and was pushed several inches into the ground with the result that the top of the base section was about 1 foot higher than the top of the fly section. Each section was leaning forward against the house at an angle. The bottom of each section was about 4 to 5 feet from the house.

On each section, the plaintiff attached a ladder jack and these jacks supported a scaffold board that was 15 feet long. These jacks were placed on the ladder rungs so that the scaffold board would be level. Apparently the scaffold jacks were attached to the second and fourth rungs of the base section and projected in a southerly direction from the ladder section so that the scaffold board was further away from the house than the ladders. Plaintiff weighed about 155 pounds and was 48 years of age. He testified that about 30 minutes after erecting this scaffold, he was standing with both feet on the board and none of his weight on the ladder. While he was putting a piece of siding in place, he felt the scaffold start to move and believed it moved to the right, but didn’t know which way it moved. Just before he fell, he was pushing slightly upward to get a piece of siding into place. There was nothing unusual about the way that it was going into place and he had done the same thing before with other pieces while he was on the scaffold. He recalled no noise at the time before he hit the ground. He did not know whether he fell on the ladder or not. The right leg of the base ladder section was bent directly to its left. Plaintiff does not remember whether he fell on the ladder or whether the ladder bent and then he fell.

The plaintiff was working for defendant Ward as an independent contractor, and had executed a contract which stated: “Contractor shall indemnify and save Ward harmless against all actions, claims, demands, costs, damages or expenses of any kind which may be brought or made against Ward for which Ward might pay or incur by reason of any injury to persons or damage to property resulting from contractors operating under this agreement.” This contract was pleaded by Ward as one of its affirmative defenses and was stricken upon motion by the plaintiff. We think it was properly stricken. It is to be noted that the language of the indemnity or exculpatory clause is broad enough to include the plaintiff within its terms. It is not as specific on this point as was the agreement in Schek v. Chicago Transit Authority, 42 Ill.2d 362, 247 N.E.2d 886. Neither do we think it can be extended to indemnify or protect Ward from liability on a ladder sold by it because of strict liability imposed for defective design. It is abundantly clear from the agreement itself that this was designed to protect Ward while the plaintiff was in the performance of contractual obligations and using materials furnished by Ward. In short, it protected Ward from the negligent injury by the plaintiff of third persons or property. It would seem to be an undue extension of this agreement to protect Ward in a products liability case separate and distinct from its indemnification contract with the plaintiff. This court and the supreme court held in Tatar v. Maxon Construction Co., 54 Ill.2d 64, 294 N.E.2d 272, that an agreement such as this could not protect against the plaintiff’s own negligence. So in like manner the agreement does not protect against an injury resulting from a liability strictly imposed because of a transaction between the parties not specifically related to the indemnification agreement. The employment contract and the merchandise purchase are separate and distinct transactions.

The complaint in this case alleged “that said ladder, although not inherently or unreasonably dangerous, would become so if designed improperly, manufactured defectively or made of defective materials, which facts were known or should have been known to the defendant.” Part way through the defendants’ testimony, the plaintiff eliminated defective manufacture or defective material and hence the verdict in this case, if it is to be sustained at all, must rest on the allegation of improper-design. As stated by the court and subscribed to by both counsel, the issue was strictly confined. The court stated: “It’s design we’re talking about * * *. Is this a dangerous product as designed? Not as manufactured. We’re no longer talking about was the material defective as far as flaws. Were no longer talking about were the manufacturing processes poor. We’re only talking about, was it suitable for the use intended, by design.” As the trial court rather succinctly stated: “We’re attacking the ladders generaUy, not this particular ladder. Right?” Mr. Johnson: “That’s right.” The court: “That’s the theory of the plaintiff’s case. These ladders are dangerous ladders, is that what you’re saying? They’re not designed right, they’re not suitable for the purpose intended.” Thus, the trial court and the parties erected a Chinese wall which confines them as well as us to the narrow issue here presented. We note that the allegations in the complaint make no attempt to describe, define or point out the design defect upon which recovery is sought. We note also that the defendants’ interrogatory directed to the plaintiff requesting that he point out the specific design defect went unanswered. Unless, therefore, we can find in the evidence some answer to what that defect may have been, the trial jury operated in a vacuum and we search in vain for the nonexistent. It is surely fundamental in our system that a party cannot have relief under proof without allegations nor allegations without any proof to support a verdict or a judgment. It is fundamental in a case of this character that the plaintiff must prove his injury or damage resulted from the condition of the product, that is, a defective design and that that condition was an unreasonably dangerous one and existed at the time the ladder left the control of the manufacturer and of Ward. Fanning v. LeMay, 38 Ill.2d 209, 230 N.E.2d 182.

We turn now to whether or not there was sufficient evidence to go to the jury on defective design. Two experts testified. The defendants’ expert ran an independent testing laboratory for ladders. He tested the same model ladder and found that it met the UL code. He testified that a man standing on the scaffold above the ladder could not create a sufficient force to bend the lower side rail. In his opinion, the deformation in the leg of the ladder was caused by a falling object. The plaintiff’s expert was a professor of theoretical and applied mechanics at the University of Illinois and testified as to certain observations he made concerning the design of the ladder in question and answered a series of questions propounded by plaintiff’s counsel concerning the design of the ladder. He examined the accident ladder and photographs but made no mechanical tests. A hypothetical question was propounded to him and the defendant moved to strike his answer. The court stated, “Show motion granted.” Additional direct and cross-examination was conducted and the plaintiff moved to reinstate his hypothetical question and answer. The court replied, “And I thought the motion was good and I’m going to let the ruling stand.” He likewise however refused to instruct the jury to disregard the hypothetical question and answer. In this situation, therefore, no attempt was made to remove these facts or the expert’s conclusionary answer from the consideration of the jury. That witness likewise stated that the design was deficient in that the web and the flanges were extremely thin and that these items are a type of alloy that can buckle if severely overloaded. He testified likewise about the design of the ladder’s foot as having an effect on its strength and safety, that the 12 inches between the bottom rung and the end of the ladder were so long that if it were loaded axially with compressive loads, it would buckle under one-fourth of the normal load. He further testified that the ladder might be dangerous under normal, ordinary and intended use. There was a statement by the plaintiff that he felt a movement before he fell. If believed by the jury, this would indicate either the ladder slipped or the leg gave way or there was a combination of both. In any event there was sufficient evidence touching design to go to the jury. Under the evidence, it is a jury question rather than a legal question. (Nolan v. Shaf Manufacturing Co., 128 Ill.App.2d 19, 261 N.E.2d 209.) In that case, an aluminum ladder was involved which had been tested for 800 pounds. There the president of the defendant company testified that if his ladder was 20 feet in length and the base 5 feet out from the wall against the floor itself leaning and the ladder coupled under a weight of 280 pounds, would it be a fair statement that there is something wrong with the ladder. The president of the defendant manufacturing company answered the question, “Yes.”. In the instant case, the ladder was constructed likewise for 800 pounds stress and the weight of the plaintiff on the ladder plus the 40 pound weight of the board and the ladder warrant the conclusion that the trial court should not have granted either a motion for directed verdict nor a motion for a judgment n.o.v. In Nolan, the trial court did grant a judgment and set aside a jury’s verdict. The appellate court reversed and remanded with directions to reinstate the verdict. We conclude therefore that there was credible evidence for the jury to consider within the guidelines of Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co., 49 Ill.2d 118, 273 N.E. 2d 809, and that such evidence went to the issue of defective design.

Other issues raised in this case in view of the limited issue and the limited pleading require no consideration as they relate basically speaking to issues not now on appeal.

Accordingly, the judgment must be affirmed.

Affirmed.

CRAVEN, J., concurs.

Mr. JUSTICE TRAPP

dissenting:

The principal opinion points out that the trial court determined that the opinion testimony at issue was. inadmissible but. failed or refuseqf to, instruct the jury to disregard it., Where opinion testimony is improperly admitted in the trial court, the reviewing courts have found it necessary to reverse and remand for a new trial. Marshall v. First American National Bank, 91 Ill.App.2d 47, 233 N.E.2d 430; Pritchett v. Steinker Trucking Company, Inc., 108 Ill. App.2d 371, 247 N.E.2d 923; Butler v. Palm, 36 Ill.App.2d 351, 184 N.E. 2d 633.

Such testimony is particularly prejudicial since there is no other evidence to sustain the jury issue of “defective design.” This case demonstrates all too well the hazards of lax standards of the hired expert.

The cited Nolan v. Shaf Manufacturing Co., 128 Ill.App.2d 19, 261 N.E.2d 209, does not concern the issue of the prejudicial effect of inadmissible expert opinion, but rather the sufficiency of circumstantial evidence to support the verdict. While there are references to the admissions of defendant’s expert witness, there is no issue of the admissibility of his testimony.

The record further shows that certain conclusions of the purported expert were permitted to go to the jury. While he concluded that the metal was “too thin” he made no tests, no measurements, no calculations and disregarded all published standards and testing data.

Since the prejudice is patent, I would reverse and remand for a new trial.


author: Mr. JUSTICE GUILD

text:
      In re Estate of Roy Willard Davison, Deceased—(Leonard Jarnowski et al., Claimants-Appellants, v. Marjorie Radke, Adm’r of the Estate of Roy Willard Davison, Deceased, Defendant-Appellee.)
    (No. 73-82;
    Second District
    September 3, 1974.

      LeRoy Stevens, of Chicago, for appellants.
    Gunner, Keller & Magdich, of Dixon, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The estate of Roy Willard Davison was opened on July 1, 1971, and on January 11 and 21, 1972, the appellants filed claims for services rendered. Due notice was mailed to counsel for the claimants on January 24, 1972. It is admitted that this notice was timely received. The notice stated that on February 8, 1972, the administrator “* * * would appear and ask for an immediate hearing on the claims of the appellants * * The appellants did not appear on that date and the attorney for the administrator was directed to submit an order disallowing the claims. On February 15, 1972, the order was submitted and entered.

The sole question presented in this case is whether the use of the word “immediate” in a notice of motion is sufficient to apprise the claimants of the administrator’s intention to ask for a hearing on the merits of the claim on that day. Appellants contend that the word “immediate” connotes the act being done within a reasonable time, while the use of the word “instanter” would apprise appellants that the hearing on the merits would be had on that date.

Stating it more succinctly, appellants’ contention is that had the notice read “instanter” they would have known that the hearing was to be held on that date, but that the use of the word “immediate” meant they woud be heard within a reasonable time. With this we do not agree.

Appellants have cited Hamilton v. People (1911), 163 IIl.App. 541, and in so doing have answered their own contention. The court in that case stated, “In its general signification and meaning the word instanter means at once, or immediately * * (163 Ill.App. at 544.) With this we agree. We see no difference between the use of the word “immediate” and “instanter” as did tire court in the case cited by the appellants. It is to be noted that the attorney for the claimants took no further action after he was notified of the hearing on the claims until approximately 9 months later when, on November 8, 1972, he moved to vacate the judgment entered dismissing the claims on February 15, 1972.

Appellants further contend that one seeking to vacate a default judgment need not show due diligence and a meritorious defense (claim), and cites Knight v. Kenilworth Insurance Co. (1971), 2 Ill. App.3d 493, 495, 275 N.E.2d 470, 472. Examination of that case does not substantiate appellants’ contention. The holding in Kenilworth is that a motion to vacate a default judgment made within term time, or 30 days from the entry thereof, may be vacated without the showing of a meritorious defense and due diligence.

The judgment of the trial court is affirmed.

Affirmed.

T. MORAN, P. J., and SEIDENFELD, J., concur.


author: Mr. JUSTICE SEIDENFELD.

text:
      In re The Village of Villa Park, Special Assessment No. 259—(Village of Villa Park, Appellant.)
    (No. 74-171;
    Second District
    September 3, 1974.

      Rehearing denied November 6, 1974.

    James K. Young and Ralph J. Gust, Jr., both of Lombard, for appellant.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. JUSTICE SEIDENFELD

text:
    Earl Kane, Plaintiff-Appellee, v. American National Bank & Trust Company, Defendant-Appellant.
    (No. 73-10;
    Second District
    August 6, 1974.

      Rehearing denied September 27, 1974.

      Reno, Zahm, Folgate, Skolrood, Lindberg & Powell, of Rockford, for appellant.
    Hunter, Madden, Plager & Hasting, of Freeport, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Earl Kane, payee of two checks drawn on insufficient funds at the defendant bank, American National Bank & Trust Company (hereinafter American), sued to recover the balance due on the checks alleging that American had held the checks beyond its midnight deadline and thereby became liable to the plaintiff. The trial court entered judgment for $66,262.20, plus interest, and defendant appeals.

American contends that certain regulations of the Federal Reserve Board and operating circulars of the Federal Reserve Bank of Chicago apply to avoid the midnight deadline under the facts of this case; and that alternatively plaintiff has waived his right to claim that the bank is accountable under provisions of section 4 — 302 of the Uniform Commercial Code. Ill. Rev. Stat. 1971, ch. 26, par. 4 — 302 (hereinafter UCC).

On July 18, 1966, the plaintiff received two checks of the same date from the Heggemeier Livestock Corporation. At that time Heggemeier owed the plaintiff approximately $108,000 for lambs, feed and wool. The larger check, for $67,413.40, contained the notation “For Fat Lambs”, and the smaller check, for $11,849.20, contained the notation “For Wool”. The next day plaintiff delivered the checks without endorsing them to the Blackhawk Production Credit Association (BPCA) to whom he was indebted, and BPCA credited his account for the amount of the checks. BPCA deposited the checks at the Freeport State Bank on July 20 and the account of the association was so credited.

The checks went to the Continental Bank in Chicago, then the Federal Reserve Bank of Chicago, and were received by the defendant, American National, on Friday, July 22, 1966. American returned the checks that same day for lack of endorsement. Although at this time the Heggemeier Corporation account did not contain sufficient funds to cover payment on the checks, the checks were not so stamped and neither BPCA nor plaintiff was notified by American of Heggemeiers lack of funds. The checks returned in reverse order of their preceding journey and while at Continental were erroneously stamped “presented twice”.

On July 26 the checks returned to the Freeport State Bank. BPCA was called and Mr. Hostetter from BPCA obtained a power of attorney from the plaintiff, who was leaving for a vacation. Mr. Hostetter came down to the Freeport State Bank and supplied the missing endorsements. The checks were then sent back on the 27th; this time directly by mail to American at the request of BPCA. The checks were sent directly to American because the amounts were large and the collection time would have been much longer if the checks were processed through normal collection channels.

Accompanying the checks was a standard collection form containing instructions and identifying the sender, the checks, the amounts, and the date sent. The instructions printed in the lower right hand comer read:

“We enclose for collection and return items as stated above.
INSTRUCTIONS:
NO PROTEST.
Surrender documents attached only on payment.
Return at once if not paid, stating reasons for non-payment.
Return this sheet. No other letter is necessary.”

On Thursday, July 28, the checks were received at American by Bernice Collins, who worked at the draft-and-collection window of American, She ignored the instructions contained on the printed form which, she stated, was a matter of normal practice. At this time the Heggemeier account did not contain sufficient funds to cover the two checks.

On Friday, July 29, the midnight deadline expired.

On Tuesday, August 2, Freeport State Bank sent a tracer to American requesting advice on payment of the two checks sent for collection on Heggemeier Livestock Corporation. The tracer was returned by American on August 3, 1966, with the notation “Still NSF”, and received by Freeport State Bank on the 4th.

Kane found out on Friday morning, August 5, that American planned to return the checks. He went to the Freeport bank and talked with BPCAs attorney. Friday evening Kane reached Heggemeier, president of the Heggemeier Livestock Corporation, and was told that Hegge-meier had a balance of some $53,000. Plaintiff then wrote a check for $27,041.36 to Heggemeier to have him deposit it so plaintiff could then collect on the two Heggemeier checks at American. The check was drawn on an inactive account of plaintiff at the Sycamore Bank which had a balance at the time of only $31. The check was post-dated August 12, plaintiff expecting to increase his account in the interim.

Plaintiff told his attorney what he had done, his attorney was upset, and payment on this Sycamore check was stopped on August 10, after the Heggemeier checks were returned. There was also some fear that Heggemeier might divert the Sycamore Bank check for uses not contemplated.

On August 8, the Freeport State Bank called American to return the two Heggemeier checks. On the 9th they were received at Freeport and BPCA’s account was charged back for the amount of the checks. Kane’s account with BPCA was also charged back for the amount of the returned checks. Kane then made other arrangements with BPCA to repay his loan to them, and BPCA returned the checks to Kane. After the checks were returned to BPCA, Kane received $13,000 from Heggemeier and elected to apply it on the larger check.

American argues that former Federal Reserve Regulations G and J, and former Operating Circulars No. 4 and No. 7 of the Federal Reserve Bank of Chicago, all in effect at the time the Heggemeier checks were sent to American, require that the checks when sent directly to American be treated as “non-cash items” with the result that the midnight deadline would not apply. American reasons that because the checks were sent directly accompanied by special instructions they required special handling so that American became only “an agent for collection” (former Reg. G, 12 C.F.R., sec. 207.3(c), and former Operating Circular No. 7, par. 13(c)), and was required only to give “credit when paid”. Former Operating Circular No. 4, par. 24.

The plaintiff contends, inter alia, that the Federal Reserve Regulations do not apply to this transaction. We agree. Federal Reserve Regulations G and J and the operating circulars thereunder relied upon by American do not apply to collections of items not sent through the Federal Reserve collection channels.

The relevant purposes of former Regulation G and Regulation J are to provide rules governing the clearing house operations provided by the Federal Reserve system for the collection of cash and noncash items, and to protect the Federal Reserve system from liability and inconveniences in conducting these operations. There is thus no need and no purpose in the Federal Reserve system regulating check clearing procedures that operate outside its system and have no effect on it.

The regulations and operating circulars relied upon themselves disclose that they only apply to regulate Federal Reserve transactions. Former Regulation G provides for regulation where banks send noncash items to any Federal Reserve bank for collection (12 C.F.R. sec. 207.3(a)) and also prescribes the authority for Reserve banks to promulgate rules, but limits the binding effect of such rules to member or nonmember banks “which send any noncash item to such Federal Reserve banks for collection”. (12 C.F.R. sec. 207.4.) Former Operating Circular No. 7 promulgated under Regulation G by the Federal Reserve Bank of Chicago Emits its applicability to the collection of items passing through the Federal Reserve Bank of Chicago; paragraphs 1 and 6 of the circular state that Regulation G and the circular prescribe the terms and conditions upon which the Federal Reserve Bank of Chicago will receive and handle noncash items for collection. See also former Fed. Res. Reg. J, 12 C.F.R. secs. 210.2(b), 210.5. 210.6; former Operating Circular No. 4, par. 1.

Since the Federal regulations have no controlling applicability to the transaction before us, the case must be decided under the provisions of the Uniform Commercial Code, supplemental principles of law and the agreements of the parties.

Under the Commercial Code, sending checks for collection directly to the drawee bank constitutes a valid method of presentment. (UCC § 4—204; Central Bank & Trust Co. v. First Northwest Bank (E.D. Mo. 1971), 332 F.Supp. 1166, 1169, affd, 458 F.2d 511; Farmers Cooperative Livestock Market, Inc. v. Second National Bank of London (Ky.App. 1968), 427 S.W.2d 247.) In the absence of an agreement authorizing the payor bank to do otherwise, such bank normally will be accountable or hable for retaining demand items beyond its midnight deadline without paying or returning the items or sending notice of dishonor. (UCC § 4—302(a); Rock Island Auction Sales, Inc. v. Empire Packing Co., Inc. (1965), 32 Ill.2d 269; Central Bank & Trust Co. v. First Northwest Bank (E.D. Mo. 1971), 332 F.Supp. 1166, 1169, aff'd, 458 F.2d 511.) The fact that the checks were sent “for collection” does not alter this result. (Farmers Cooperative Livestock Market, Inc. v. Second National Bank of London (Ky.App. 1968), 427 S.W.2d 247, 249-250.) In the instant case the desire to expedite the collection process was the reason the Heggemeier checks were sent directly by mail to American (see also Official Comment 2 to UCC § 4 — 204), and an instruction requesting immediate return if not paid accompanied the checks. Yet American held the checks without paying, returning, or notifying Free-port State Bank of dishonor until Freeport sent a tracer which was returned almost a week later by American.. Under these circumstances we conclude that American should be held accountable for the unpaid balance of the checks, unless, as defendant further claims, plaintiff has ratified or waived defendant’s nonaction.

After the midnight deadline expired, the plaintiff issued a check on August 5, 1966, to Heggemeier for $27,041.36, and postdated it August 12. His purpose in doing so was to have Heggemeier deposit the check to the Heggemeier account at American which plaintiff was told had a balance of $53,000. Heggemeier’s account would then total approximately $80,000 so that plaintiff’s checks from Heggemeier, totaling $79,262.60, could be paid. The check contained the notation “Feed Bill to date Pd. in full” above the endorsement. Heggemeier attempted to deposit this check at American before his checks to plaintiff were returned, but American, according to the testimony of one of its officers, did not “like the looks” of the check and refused to accept it for collection. On August 10, after the Heggemeier checks to plaintiff were returned, plaintiff stopped payment on the $27,041.36 check he gave to Heggemeier.

American argues that plaintiff’s action in delivering the check to Heggemeier waived his right to complain or constituted a ratification of American’s failure to observe its midnight deadline. American’s claim of waiver and ratification is based upon the reasoning that plaintiff’s plan to have his post-dated check deposited in Heggemeier’s account to make good the Heggemeier checks at American could not have succeeded unless American continued to hold the Heggemeier checks for collection beyond the midnight deadline.

American first points to UCC § 1 — 107, and contends the plaintiff’s check delivered to Heggemeier constituted a written waiver of plaintiff’s rights under UCC § 4 — 302 against American.

UCC § 1 — 107 provides:

“Any claim or right arising out of an alleged breach can be discharged in whole or in part without consideration by a written waiver or renunciation signed and delivered by the aggrieved party.”

UCC § 1 — 107’s counterpart for commercial paper is contained in UCC § 3 — 605. Neither UCC § 1 — 107 nor UCC § 3 — 605 seems to apply to breach of a statutory duty and consequent liability imposed by statute. Even if the applicability of these sections to the type of liability in question is assumed, we cannot conclude that plaintiff’s check to Heggemeier was intended to be or contained sufficient formal requisites to constitute a written waiver or renunciation as contemplated by UCC § 1 — 107 and UCC § 3 — 605. Thus the determination of whether plaintiff’s delivering of a check to Heggemeier signifies an effective implied waiver is to be decided by resort to principles of the law of waiver which exist outside the Commercial Code. UCC § 1 — 103.

Both parties agree on the applicable definition of waiver as stated in Ferrero v. National Council of Knights and Ladies of Security (1923), 309 Ill. 476, 481:

“To constitute a waiver it is essential that there is an existing right, benefit or advantage, knowledge, actual or constructive, of its existence, and an intention to relinquish it * *

See also Vermilion County Production Credit Ass’n v. Izzard (1969), 111 Ill.App.2d 190, 195.

Generally, to make out a case of implied waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose. (Jacksonville Hotel Building Corp. v. Dunlap Hotel Co. (1931), 264 Ill.App. 279, 319, affd, 350 Ill. 451; Klim v. Johnson (1958), 16 Ill.App.2d 484, 493; 28 Am.Jur.2d Estoppel & Waiver § 160 (1966); 92 C.J.S. (Waiver) 1064 (1955).) An implied waiver may arise where a person against whom the waiver is asserted has pursued such a course of conduct as to sufficiently evidence an intention to waive a right or where his conduct is inconsistent with any other intention than to waive it. (28 Am.Jur.2d Estoppel & Waiver § 160 (1966); 92 C.J.S. (Waiver) at 1061, 1963 — 4 (1955); Globe Brewing Co. v. American Malting Co. (1909), 152 Ill.App. 194, 198, 200-201, red’d on other grounds, 247 Ill. 622.) The burden of proof is upon the party claiming a waiver to prove the facts upon which he relies for such waiver. Ferrero v. Knights of Securíty (1923), 309 Ill. 476, 481.

In applying the above rules to the facts of the case before us, we note that plaintiff s check to Heggemeier was made out in an odd amount and contained the notation “Feed Bill to date Pd. in full” above the endorsement, which does not suggest to an uninformed party that this check was related to the Heggemeier checks which are the subject of this litigation. While it appears from the record that the notation was Heggemeier’s idea, the effect of the procedure used was to disguise from American the true nature of the transaction taking place. From this it may reasonably be inferred that the presentment of the $27,041.36 check was not an unequivocal act showing an intention to relinquish any right of action against American; nor could it be considered a specific approval or ratification of the bank’s conduct in disregarding its midnight deadline and the instruction accompanying the checks to return them immediately if not paid.

Additionally we note that American refused to accept plaintiffs check to Heggemeier for collection. A waiver or ratification may be ineffectual because it is conditional and the attached condition fails or is rejected. (See Schenck v. State Line Telephone Co. (1924), 238 N.Y. 308, 312-313, 144 N.E. 592, 593-594; Jordan v. City of Beaumont (Tex. Civ. App. 1960), 337 S.W.2d 115, 118-119; Andrews v. Powell (Tex. Civ. App. 1951), 242 S.W.2d 656, 661.) In the instant case plaintiff’s attempt to collect at least $52,000 on the Heggemeier checks was contingent for its success on American accepting plaintiff’s check for collection. Having refused to do so, American cannot now successfully urge that the attempt constituted a valid waiver or ratification of its failure to timely return the Heggemeier checks.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

GUILD and RECHENMACHER, JJ., concur.

       12 C.F.R. sec. 207 (eff. Aug. 21, 1959, as amended Jan. 1, 1964 and Sept. 1, 1964). Regulation G has since been consolidated under Regulation J (12 C.F.R. sec. 210) effective Sept. 1, 1967.

       12 C.F.R. sec. 210 (1960 as amended eff. Sept. 27, 1962 and Sept. 1, 1964).

       Revised Sept. 1, 1964, as amended by Supp. No. 1, May 5, 1965, and Supp. No. 2, July 12, 1965.

       Revised Sept. 1, 1964, as amended by Supp. No. 1, May 5, 1965.

         American does not make the argument in this appeal that sending checks directly “for collection” to the payor bank, by normal banking practices, is understood to authorize or permit the payor bank to hold such checks beyond the midnight deadline. (See UCC § 1 — 205(2) — (5).) Because American was instructed to return the checks at .once if not paid, the argument, if made, could not succeed in any event.